ERN>01515964 E459

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Trial Chamber ORIGINAL ORIGINAL Chambre de instance 18 July 2017 15 50 première tj jjfl Date Sann Rada CMS CFO ~~~|]~~ ooia 0gnmi ~~~~ ~~~ ~~~~

Case File Dossier No 002 19 09 2007 ECCC TC

Before Judge NIL Nonn President Judge Jean Marc LAVERGNE Judge YA Sokhan Judge Claudia FENZ Judge YOU Ottara

Date 18 July 2017 Original language s Khmer English French Classification CONFIDENTIAL

Decision on Witnesses Civil Parties and Experts Proposed to be heard during Case 002 02

Co Prosecutors Accused CHEA Leang NUON Chea Nicholas KOUMJIAN KHIEU Samphan

Civil Party Lead Co Lawyers Lawyers for the Defence PICH Ang SON Arun Marie GUIRAUD Victor KOPPE KONG Sam Onn Anta GUISSÉ

âîüiütws d MUmitsiHrel son fltai îfffimnoi rnfii mnniûmn rte sun i dSSi lam toé cted bimii i fififij hm laei fide ~~~~ www eccc kh tu n enuiavnu lü Uü v °gov National Road 4 Chaom Chau Dangkao PO Box 71 Phnom Penh Tel 855 0 23218914 Fax 855 0 23218941 Web www eccc gov kh ERN>01515965 002 19 09 2007 ECCC TC E459

1 INTRODUCTION 5

2 PROCEDURAL HISTORY 5

3 LEGAL FRAMEWORK 8

4 GENERAL CONSIDERATIONS 12

5 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR THE TRAM ~~~ AND KRAING ~~ CHAN SECURITY CENTRE TRIAL TOPIC 13

5 1 Witnesses Civil Parties and Experts heard by the Chamber 15 5 2 Deceased or Withdrawn 16 5 3 Repetitive and or Irrelevant and or Less Relevant 17 5 3 1 Individuals proposed by the Co Prosecutors 17 5 3 2 Individuals proposed by the Lead Co Lawyers 20 5 3 3 Individuals proposed by the NUON Chea Defence 23 5 4 General Witnesses 24

6 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR THE WORKSITES TRIAL TOPIC 24

6 1 1st January Dam Worksite 24 6 2 Kampong Chhnang Airport 25 6 3 Trapeang Thma Dam 26 6 4 Witnesses Civil Parties and Experts heard by the Chamber 27 6 4 1 1st January Dam 27 6 4 2 Kampong Chhnang Airport 27 6 4 3 Trapeang Thma Dam 28 6 5 Deceased or withdrawn 28 6 6 Proposed testimony of IM Chaem 2 TCW 924 29 6 7 Repetitive and or Irrelevant and or Less Relevant 30 6 7 1 1st January Dam 30 6 7 2 Kampong Chhnang Airport 31 6 7 3 Trapeang Thma Dam 31 6 8 General witnesses 32

7 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR THE TREATMENT OF TARGETED GROUPS TRIAL TOPIC 33

7 1 The Treatment of the Vietnamese 33 7 2 The Treatment of the Cham 35 7 3 The Treatment of Former Khmer Republic Officials 36 7 4 Witnesses Civil Parties and Experts heard by the Chamber 37 7 4 1 The Treatment of the Vietnamese 37 7 4 2 The Treatment of the Cham 38 7 4 3 The Treatment ofFormer Khmer Republic Officials 39 7 5 Deceased 40 7 6 Repetitive and or Irrelevant and or Less Relevant 40 7 6 1 Individuals proposed by the Co Prosecutors on the Treatment of the Vietnamese 40 7 6 2 Individuals proposed by the Lead Co Lawyers on the Treatment of the Vietnamese 42 7 6 3 Individuals proposed by the Co Prosecutors on the Treatment of the Cham 43 7 6 4 Individuals proposed by the Lead Co Lawyers on the Treatment of the Cham 45 7 7 General witnesses 46

8 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR THE SECURITY CENTRES AND INTERNAL PURGES TRIAL TOPIC 47

8 1 Au Kanseng Security Centre 47 8 2 Phnom Kraol Security Centre 48 8 3 S 21 Security Centre 48 8 4 Internal Purges 49 8 5 Witnesses Civil Parties and Experts heard by the Chamber 50 8 5 1 Au Kanseng Security Centre 50 8 5 2 Phnom Kraol Security Centre 51 8 5 3 S 21 Security Centre 51

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8 5 4 Internal Purges 52 8 6 Deceased withdrawn or no longer available to testify 53 8 7 Repetitive and or Irrelevant and or Less Relevant 54 8 7 1 Au Kanseng Security Centre 54 8 7 1 1 Individuals proposed by the Co Prosecutors 54 8 7 1 2 Individuals proposed by the Lead Co Lawyers 55 8 7 2 Phnom Kraol Security Centre 56 8 7 3 S 21 Security Centre 57 8 7 3 1 Individuals proposed by the Co Prosecutors 57 8 7 3 2 Individuals proposed by the Lead Co Lawyers 58 8 7 3 3 Individuals Proposed by the NUON Chea Defence 60 1 S 21 Security Guards 60 2 S 21 Detainees 62 3 Authenticity and Chain of Custody Witnesses 63 4 Prof Walter HEYNOWSKI 2 TCW 946 65 8 7 4 Internal Purges 68 8 7 4 1 Individuals Proposed by the Co Prosecutors 68 8 7 4 2 Individuals proposed by the Lead Co Lawyers 69 8 7 4 3 Individuals proposed by the NUON Chea Defence 70 8 7 5 Experts on S 21 and Internal Purges 71 8 8 General Witnesses 73

9 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR THE REGULATION OF MARRIAGE TRIAL TOPIC 73

9 1 Witnesses Civil Parties and Experts heard by the Chamber 75 9 2 Withdrawn 76 9 3 Repetitive and or Irrelevant and or Less Relevant 76 9 3 1 Individuals proposed by the Co Prosecutors 76 9 3 2 Individuals proposed by the Lead Co Lawyers 78 9 4 General Witnesses 81

10 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR THE NATURE OF THE ARMED CONFLICT TRIAL TOPIC 82

10 1 Nature of the Armed Conflict 82 10 2 Findings 83 10 3 Witnesses and Experts heard by the Chamber 84

11 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR THE ROLE OF THE ACCUSED TRIAL TOPIC 85

11 1 Role of the Accused 85 11 2 Witnesses and Civil Parties heard by the Chamber 86 11 3 Unable or unwilling to testify 87 11 4 Repetitive and or Irrelevant and or Less Relevant 89 11 4 1 Individuals proposed by the Lead Co Lawyers 89 11 5 General witnesses 92

12 PROPOSED EXPERTS 92

12 1 Findings 94

13 INDIVIDUALS ON WHOM NO CONSENSUS COULD BE REACHED 97

13 1 Procedural History 98 13 1 1 NUON Chea Defence Submissions 99 13 2 Opinion of the Majority Judges NIL Nonn YA Sokhan and YOU Ottara 103 13 2 1 Introduction 103 13 2 1 1 The Supreme Court Chamber’s Judgement in Case 002 01 104 13 2 1 2 Our approach in Case 002 02 105 13 2 2 HENG Samrin 2 TCW 831 106 13 2 2 1 The East Zone 107 13 2 2 2 Factions and treasonous rebellion 110 13 2 2 3 Internal Purges and the armed conflict with Vietnam 113 13 2 2 4 Treatment of targeted groups 117 13 2 2 5 Character or otherwise unique or exculpatory evidence 120

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13 2 3 OUKBunchhoeun 2 TCW 951 122 13 2 3 1 East Zone and Sector 21 123 13 2 3 2 Factions and treasonous rebellion 123

13 2 3 3 Internal purges and the armed conflict with Vietnam 125 13 2 3 4 Treatment of targeted groups 127 13 2 3 5 Otherwise unique or exculpatory evidence 130 13 2 4 POL Saroeun 2 TCW 962 131 13 2 5 Conclusions 132 13 3 Opinion of the Minority Judges Jean Marc LAVERONE and Claudia FENZ 133

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1 INTRODUCTION

1 In the present decision the Trial Chamber sets out its rationale for not calling certain

individuals proposed by the Parties as relevant to Case 002 02 The Chamber first sets out the

procedural history for witnesses Civil Parties and experts proposed for the entirety of Case 002 02 which provides the background to its decisions

2 PROCEDURAL HISTORY

2 On 8 April 2014 further to its decision severing Case 002 and determining the scope of

1 Case 002 02 the Trial Chamber ordered the Parties to file updated lists and summaries of

proposed witnesses Civil Parties and experts for Case 002 02 “Revised Lists” as well as

2 any objections against individuals proposed by other Parties

3 3 Revised Lists were filed on 8 May 2014 by the NUON Chea Defence and on 9 May 2015 by the Co Prosecutors Civil Party Lead Co Lawyers “Lead Co Lawyers” and the

4 KHIEU Samphan Defence

4 On 30 May 2014 the National Co Prosecutor and the KHIEU Samphan Defence filed

5 their respective objections to witnesses Civil Parties and experts proposed by other Parties

The KHIEU Samphan Defence indicated that it provisionally objected to a number of proposed witnesses and Civil Parties for whom it did not have sufficient information and

i Decision on Additional Severance of Case 002 and Scope of Case 002 02 E301 9 1 4 April 2014 2 Order to File Updated Material in Preparation for Trial in Case 002 02 E305 8 April 2014 paras 1 8 3 Updated Lists and Summaries of Proposed Witnesses Civil Parties and Experts E305 4 8 May 2014 with Confidential Annexes E305 4 1 E305 4 2 The lists include a column headed “Summary of Proposed Testimony” in which the requesting Party seeks to substantiate the relevance of the requested person’s testimony for the “Points of Indictment” that are identified in a separate column 4 Co Prosecutors’ Proposed Witness Civil Party and Expert List and Summaries for the Trial in Case File 002 02 With 5 Confidential Annexes I II IIA III and IIIA E305 6 9 May 2014 with Confidential Annexes E305 6 1 E305 6 2 E305 6 3 E305 6 4 E305 6 5 Civil Party Lead Co Lawyers’ Rule 80 Witness Expert and Civil Party Lists for Case 002 02 with Confidential Annexes E305 7 9 May 2014 with Confidential Annexes E305 7 1 E305 7 1 1 E305 7 1 2 Témoins et experts proposés par la Défense de M KHIEU Samphân pour le procès 002 02 E305 5 9 May 2014 with Confidential Annexes E305 4 1 E305 4 2 See also Addendum to Civil Party Lead Co Lawyers’ Rule 80 Witness Expert and Civil Party Lists for Case 002 02 with Confidential Annex E305 7 4 23 July 2014 with Confidential Annex E305 7 4 1 The lists include a column headed “Summary of Proposed Testimony” in which the requesting Party seeks to substantiate the relevant of the requested person’s testimony for the “Points of Indictment” that are identified in a separate column 5 National Co Prosecutor’s objections to the Witnesses and Experts Proposed by the Other Parties E305 10 30 May 2014 Opposition de la Défense de M KHIEU Samphân à la comparution de certaines personnes proposées aux fins d’audition au cours du procès 002 02 et demande de clarification sur la portée exacte des débats suite à la nouvelle décision de disjonction E301 9 1 E305 9 30 May 2014

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requested clarification on the scope of Case 002 02 It also objected to a number of proposed

6 experts

5 On 11 June 2014 in response to the Parties’ joint request for clarification concerning the

7 application of Internal Rule IR 87 4 the Trial Chamber clarified that Case 002 started

upon the Initial Hearing for Case 002 held in June 2011 Also in June 2011 the Parties filed

lists of proposed witnesses Civil Parties and experts for the entirety of Case 002 “Initial

Lists” The Trial Chamber therefore confirmed that any new witnesses Civil Parties and

8 experts proposed later than June 2011 must meet the requirements of IR 87 4 The Trial Chamber noted that each of the Revised Lists filed by the Co Prosecutors Lead Co Lawyers and the KHIEU Samphan Defence included individuals not mentioned in their Initial Lists The Chamber accordingly invited these Parties to file applications to hear those individuals in

9 accordance with IR 87 4

6 In June and July 2014 the Parties filed IR 87 4 motions regarding proposed new

10 witnesses Civil Parties and experts for Case 002 02 The KHIEU Samphan Defence

responded to the motions of the Co Prosecutors and Lead Co Lawyers on 18 August 2014

6 Opposition de la Défense de M KHIEU Samphân à la comparution de certaines personnes proposées aux fins d’audition au cours du procès 002 02 et demande de clarification sur la portée exacte des débats suite à la nouvelle décision de disjonction E301 9 1 E305 9 30 May 2014 paras 18 27 On 29 July 2014 the Supreme Court Chamber upheld the Trial Chamber’s decision on the additional severance of Case 002 and on the scope of Case 002 02 and declared a provisional stay of the charges outside the scope of Cases 002 01 and 002 02 pending appropriate disposal by the Trial Chamber Decision on KHIEU Samphan’s Immediate Appeal Against the Trial Chamber’s Decision on Additional Severance of Case 002 and Scope of Case 002 02 SCC E301 9 1 1 3 29 July 2014 paras 88 90 7 Parties’ Joint Request for Clarification regarding the application of Rule 87 4 in Case 002 02 E307 30 April 2014 8 Trial Chamber Memorandum entitled “Decision on Parties’ Joint Request for Clarification regarding the Application of Rule 87 4 E307 and the NUON Chea Defence Notice of Non Filing of Updated Lists Evidence ” E305 3 E307 1 11 June 2014 paras 2 5 9 Trial Chamber Memorandum entitled “Decision on Parties’ Joint Request for Clarification regarding the Application of Rule 87 4 E307 and the NUON Chea Defence Notice of Non Filing of Updated Lists Evidence ” E305 3 E307 1 11 June 2014 para 5 See List of Proposed Witnesses Experts and Civil Parties Pseudonyms E9 35 12 February 2012 10 Demande de la Défense de M KHIEU Samphân tendant à la comparution d’un nouvel expert au cours du procès 002 02 règle 87 4 du Règlement intérieur E307 2 19 June 2014 NUON Chea Defence’s New witness Civil Party and expert list for case 002 02 E307 4 24 July 2014 with Confidential Annexes E307 4 2 E307 4 3 Co Prosecutors’ Rule 87 4 Motion Regarding Proposed Trial Witnesses for Case 002 02 E307 3 2 28 July 2014 with Confidential Annexes E307 3 2 2 and E307 3 2 3 Civil Party Lead Co lawyers’ Rule 87 4 Request to Admit Into Evidence Oral Testimony and Documents and Exhibits Related to Witnesses Experts and Civil Parties Proposed to Testify in Case 002 02 E307 6 29 July 2014

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reiterating a number of objections to individuals proposed to be heard for whom not all the

11 documentation was available to the Defence

7 The Parties made additional submissions in relation to the proposed individuals during

12 the Further Initial Hearing held specifically for Case 002 02 on 30 July 2014 The KHIEU

Samphan Defence withdrew its previous objections to a number of witnesses in view of

13 documentation received in the interim The NUON Chea Defence requested that Richard

DUDMAN 2 TCW 923 and Walter HEYNOWSKI 2 TCW 946 be heard on an expedited

14 basis possibly by video link due to their advanced age

8 On 21 October 2014 the Trial Chamber decided upon a joint request of the Co

15 Prosecutors and the Lead Co Lawyers for a de novo ruling on the application of IR 87 4

After reiterating that the relevant date for the purposes of IR 87 4 was in 2011 the Trial

Chamber noted that a significant amount of time had passed since the Initial Lists were filed

It therefore decided on an exceptional basis to consider the Revised Lists as permissible

11 Réponse de M KHIEU Samphân aux requêtes des co procureurs et des co Avocats des Parties Civiles intitulées « Co Prosecutors’ Rule 87 4 Motion Regarding Proposed Trial Witnesses for Case 002 02 » E307 3 2 et « Civil Party Lead Co Lawyers’ Rule 87 4 Request to Admit into Evidence Oral Testimony and Documents and Exhibits Related to Witnesses Experts Civil Parties Proposed to Testify in Case 002 02 » E307 6 E307 7 18 August 2014 12 T 30 July 2014 Further Initial Hearing pp 46 51 54 56 111 13 T 30 July 2014 Further Initial Hearing p 107 Opposition de la Défense de M KHIEU Samphân à la comparution de certaines personnes proposées aux fins d’audition au cours du procès 002 02 et demande de clarification sur la portée exacte des débats suite à la nouvelle décision de disjonction E301 9 1 E305 9 30 May 2014 paras 18 27 The Chamber however notes that in its response to the Co Prosecutors’ and Lead Co Lawyers’ IR 87 4 motions of July 2014 the KHIEU Samphan Defence reiterated its previous objection in relation to a number of same witnesses and on the same grounds see Réponse de M KHIEU Samphân aux requêtes des co procureurs et des co Avocats des Parties Civiles intitulées « Co Prosecutors’ Rule 87 4 Motion Regarding Proposed Trial Witnesses for Case 002 02 » E307 3 2 et « Civil Party Lead Co Lawyers’ Rule 87 4 Request to Admit into Evidence Oral Testimony and Documents and Exhibits Related to Witnesses Experts Civil Parties Proposed to Testify in Case 002 02 » E307 6 E307 7 18 August 2014 para 17 Having reviewed the objections the Trial Chamber finds they are moot as all the documents and materials relating to these witnesses have been made available to the Parties The Chamber also notes that the KHIEU Samphan Defence requested again that the Trial Chamber clarify the exact scope of proceedings in the trial in Case 002 02 Opposition de la Défense de M KHIEU Samphân à la comparution de certaines personnes proposées aux fins d’audition au cours du procès 002 02 et demande de clarification sur la portée exacte des débats suite à la nouvelle décision de disjonction E301 9 1 E305 9 30 May 2014 paras 28 34 51 Exceptions d’irrecevabilité portant sur certains documents proposés pour le procès 002 02 et demande d’un véritable débat contradictoire sur la valeur probante E327 3 2 February 2015 para 26 On 30 June 2015 the Chamber held that “[cjonsistent with its established practice refusing reconsideration of its decisions absent new facts or new circumstances” it would not make further general rulings on the scope of Case 002 02 but would instead rule on specific concrete questions arising during the trial It also held that the KHIEU Samphan Defence presented “no such question warranting another decision on the scope of Case 002 02” Decision on Objections to Documents Proposed to be Put Before the Chamber in Case 002 02 E305 17 30 June 2015 para 42 14 T 30 July 2014 Further Initial Hearing pp 46 92 15 Trial Chamber Memorandum entitled “Decision on Joint Request for de novo Ruling on the application of ” Internal Rule 87 4 E307 1 2 21 October 2014 Joint request for a de novo ruling on the application of rule 87 4 in case 002 02 and a submission regarding the non applicability of rule 87 4 to material already on the case file E307 1 1 15 August 2014

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revisions to the Initial Lists to which IR 87 4 did not apply such that no such applications

16 would be necessary The Trial Chamber however stressed that any future proposals to hear

additional witnesses Civil Parties or experts who are not identified on the Revised Lists must

17 satisfy the requirements of IR 87 4

3 LEGAL FRAMEWORK

18 9 As previously set out by this Chamber under the ECCC legal framework the Trial Chamber shall select those individuals to testify that it determines to be most conducive to ascertaining the truth subject to the overall requirement that ECCC proceedings “be fair and

adversarial and preserve a balance between the rights of the parties” and that they are

19 “brought to a conclusion within a reasonable time” The Chamber may also hear expert

20 evidence on any subject considered necessary at trial

10 Pursuant to IR 87 3 the Chamber may decline to hear evidence that is a irrelevant or

repetitious b impossible to obtain within a reasonable time c unsuitable to prove the facts

it purports to prove d not allowed under the law or e intended to prolong proceedings or

21 frivolous

11 Although the English version of IR 84 1 states that the Accused “shall have the absolute

right to summon witnesses against him or her whom the Accused had no opportunity to

examine during the pre trial stage” this formulation is not reflected in the other language

16 Trial Chamber Memorandum entitled “Decision on Joint Request for de novo Ruling on the application of ” Internal Rule 87 4 E307 1 2 21 October 2014 paras 10 11 17 Trial Chamber Memorandum entitled “Decision on Joint Request for de novo Ruling on the application of ” Internal Rule 87 4 E307 1 2 21 October 2014 para 12 18 Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 19 IRs 21 l a and 21 4 see also IR 85 1 providing that the President shall guarantee the free exercise of Defence rights and may exclude any proceedings that unnecessarily delay the trial and are not conducive to ascertaining the truth See Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 22 20 IR 31 1 See Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 22 21 IR 87 3 Case 002 01 Appeal Judgement F36 23 November 2016 para 133 Decision on the Co Prosecutors’ and KHIEU Samphan’s Internal Rule 87 4 Requests concerning US Diplomatic Cables E282 and E282 1 E290 and E290 1 E282 2 13 June 2013 para 3 See also KAING Guek Eav alias Duch Trial Judgement ECCC Trial Chamber 001 18 07 2007 ECCC TC E188 26 July 2010 para 41 Prosecutor v Karemera et al Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008 ICTR Appeals Chamber ICTR 98 44 AR73 14 30 January 2009 para 25 finding that the repetitive nature of testimony is to be considered as a factor in determining whether hearing it is necessary see also KAING Guek Eav alias Duch Decision on Protective Measures and Witnesses and Experts and on Parties’ Request to Hear Witnesses and Experts Reasons E40 1 10 April 2009 para 12 See Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 23

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22 versions of this Rule This sub rule must be evaluated in the light of the totality of the

ECCC legal framework which emphasises a balancing of the rights of all Parties and the need

23 for a fair and expeditious trial As confirmed by the Supreme Court Chamber SCC in its

Appeal Judgement in Case 002 01 while the right to request that a witness be called in one’s

24 defence is an essential component of the right to a fair trial it is not an absolute right

12 Further as noted by the SCC the ECtHR has held that “a conviction may not be based

solely or to a decisive degree on evidence by a witness whom the defence has not had an

opportunity to examine unless there are sufficient counterbalancing factors in place so that

25 the accused is given an effective opportunity to challenge the evidence against him” In the

ECtHR’s view the word “decisive” should be “narrowly understood as indicating evidence of

such significance or importance as it is likely to be determinative of the outcome of the case”

It has further considered that where the “untested evidence of a witness is supported by other

corroborative evidence the assessment of whether it is decisive will depend on the strength of

the supportive evidence the stronger the corroborative evidence the less likely that the

26 evidence of the absent witness will be treated as decisive”

13 In this regard the Chamber recalls that in the context of trials of mass crimes the Trial

Chamber may admit and under certain conditions rely on evidence in the form of written

statements or transcripts without requiring their authors to be present in court for examination

27 where these go to proof of matters other than the acts or conduct of the accused Where the

22 Cf IR 84 1 “L’accusé a le droit d’exiger la comparution d’un témoin avec lequel il n’a pas eu l’occasion d’être confronté au stade de l’instruction” and HS

” §1StriS§fTlfiî nStlîtSiHfUTIRfTltlîHStCltlîâstilHS0 See Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 24 23 See IRs 21 l a and 21 4 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia Article 33 new See Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 24 24 Case 002 01 Appeal Judgement F36 23 November 2016 para 133 See also Popov v Russia Judgement ECtHR Application No 26853 04 13 July 2006 paras 187 188 Bocos Cuesta v The Netherlands Judgement ECtHR Application No 54789 00 10 February 2006 paras 72 73 Vidal v Belgium Judgement ECtHR Application No 12351 86 22 April 1992 paras 34 35 25 Case 002 01 Appeal Judgement 23 November 2016 para 296 referring to Al Khawaja and Tahery v United Kingdom Judgement ECtHR Application No 26766 05 22228 06 15 December 2011 paras 127 147 26 Al Khawaja and Tahery v United Kingdom Judgement ECtHR Application No 26766 05 22228 06 15 December 2011 para 131 27 In accordance with the relevant international rules and practice evidence in the form of written statements or transcripts may be put before the Chamber without requiring the attendance of their authors at trial notably when this evidence a is of a cumulative nature in that other witnesses will give or have given oral testimony of similar facts

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statements or transcripts go to the proof of the acts and conduct of the accused and the authors

are still alive and fit to testify the Trial Chamber is generally precluded from relying on the

28 statements unless the defence is afforded an opportunity of confrontation

14 Procedural rules developed at the international level also establish that in determining

which individuals shall be heard at trial there is a need to balance the right of the Accused to

29 a fair and adversarial trial against the right to be tried without undue delay In relation to

trials of international crimes which are often complex and extensive in scope the Trial

Chamber’s duty to ensure the fairness and expeditiousness of proceedings will frequently

entail a delicate balancing of interests including the Prosecutor’s duty to present the available

30 evidence to prove its case and the rights of the Accused At the ad hoc Tribunals the parties

are primarily responsible for identifying which witnesses shall be heard at trial In contrast before the ECCC it is the Trial Chamber which is in charge of the conduct of the hearing and bears the primary responsibility for selecting all individuals who will be summoned to give

31 evidence at trial Consequently the notion of proportionality between the time allocated to

the presentation of the Prosecution and Defence cases has limited application before the

b relates to relevant historical political or military background concerns crime base evidence or goes to proof of threshold elements of international crimes such as the existence of an international armed conflict or the widespread or systematic nature of an attack c consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates d concerns the impact of crimes upon victims or e is impossible to subject to confrontation because its author has subsequently died or can no longer with reasonable diligence be traced or is medically unable to testify orally Decision on Co Prosecutors’ Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents Before the Trial Chamber E96 7 20 June 2012 paras 23 24 Case 002 01 Appeal Judgement F36 23 November 2016 para 296 28 Decision on Co Prosecutors’ Rule 92 Submission Regarding the Admission of Witness Statements and Other Documents Before the Trial Chamber E96 7 20 June 2012 paras 21 22 29 Prosecutor v Ndayambaje et al Decision on Joseph Kanyabashi’s Motions for Modification of his Witness List the Defence Responses to the Scheduling Order of 13 December 2006 and Ndayambaje’s Request for Extension of Time within which to Respond to the Scheduling Order of 13 December 2006 ICTR Trial Chamber ICTR 98 42 T 21 March 2007 para 30 Prosecutor v Karemera et al Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008 ICTR Appeals Chamber ICTR 98 44 AR73 14 30 January 2009 para 29 30 Prosecutor v Prlic et al Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case ICTY Appeals Chamber IT 04 74 AR73 4 6 February 2007 paras 14 16 Prosecutor v Gotovina et al Decision on Prosecution’s Motion to Add a Witness to its Rule 65ter Witness List and to Add Three Associated Documents to its Rule 65ter Exhibit List ICTY Trial Chamber IT 06 90 T 16 June 2008 para 3 Prosecutor v Gotovina et al Decision on Cermak Defence’s Second and Third Motions to Add a Witness to its Rule 65ter G Witness List ICTY Trial Chamber IT 06 90 T 22 September 2009 para 7 Prosecutor v Gotovina et al Decision on Cermak Defence’s Fourth Motion to Amend the Rule 65ter G Witness List ICTY Trial Chamber IT 06 90 T 15 October 2009 para 3 31 Trial Chamber memorandum entitled “Direction to the parties in advance of discussion at the Initial ” Hearing of provisional list of witnesses experts and Civil Parties E108 29 June 2011 para 5 Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 25 see also IR 85 1

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32 ECCC While the Chamber has endeavoured to hear witnesses Civil Parties and experts

requested by all Parties it has done so in order to fulfil its duty to ascertain the truth rather

than to ensure proportionality between the individuals proposed by the Parties

15 Ascertaining the truth need not require the testimony of an unlimited number of witnesses and provided the Trial Chamber has adequately weighed the complexities of the

case and the evidence offered by the Accused it is well established that Trial Chambers may

33 order the reduction of the number of witnesses the parties have requested to hear Other

international courts and tribunals have also sought measures to ensure judicial economy and

have on occasion sanctioned significant reductions to the parties’ witness lists where these

reductions are reasoned follow adversarial discussion and have no adverse impact on the

34 fairness of the trial or on the ability to present an effective defence The Chamber considers

that where several individuals are proposed to be heard on similar facts or issues preference

shall be given to those whose proposed evidence is sought by one or more parties to the

proceedings covers multiple trial topics or are likely to have greater relevance or probative

35 value

16 A further feature of the ECCC legal framework is the need to also take account of the

interests of the Civil Parties who participate at trial in order to support the Prosecution and to

seek collective and moral reparation in relation to harm suffered in consequence of the crimes

36 for which the Accused are charged In this regard the Chamber notes that it regularly

schedules hearings dedicated to harm suffered by the Civil Parties during which a number of

selected Civil Parties are heard on the harm they suffered during the Democratic Kampuchea

32 See e g Prosecutor v Oric Interlocutory Decision on Length of Defence Case ICTY Appeals Chamber IT 03 68 AR73 2 20 July 2005 para 8 33 Prosecutor v Nshogoza Decision on Defence Motion for Reconsideration of the Chamber’s Further Order for the Defence to Reduce its Witness List ICTR Trial Chamber ICTR 07 91 T 26 February 2009 paras 1 8 See IRs 21 4 85 1 and 87 3 b Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 27 34 Prosecutor v Karemera et ai Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008 ICTR Appeals Chamber ICTR 98 44 AR73 14 30 January 2009 paras 17 27 considering as permissible the reduction of an Accused’s witness list from 354 witnesses to 35 as the latter adequately permitted the Accused to present his case see also Prosecutor v Nshogoza Decision on Defence Motion for Reconsideration of the Chamber’s Further Order for the Defence to Reduce its Witness List ICTR Trial Chamber ICTR 07 91 T 26 February 2009 paras 1 8 permitting reduction of a witness list from more than 40 to no more than 10 Prosecutor v Nyiramasuhuko et al Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 concerning the Dismissal of Motions to Vary his Witness List ICTR Appeals Chamber ICTR 98 42 AR73 21 August 2007 See Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 27 35 See Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 133 36 IR 23 l a and b see also IR 21 1 stating that the ECCC legal framework “shall be interpreted so as to always safeguard the interests of Suspects Charged Persons Accused and Victims”

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period While their statements are meant to focus on their sufferings occasionally these Civil

Parties give evidence on matters of fact The Trial Chamber has therefore consistently given

the Parties an opportunity to question them in relation to new facts or allegations against the

37 Accused that emerged from their respective statements of suffering

17 Under the ECCC legal framework decisions by the Trial Chamber concerning the

summonsing of witnesses are open to appeal only at the same time as the judgement on the

38 merits

4 GENERAL CONSIDERATIONS

18 At the outset the Trial Chamber stresses that the present decision only concerns

witnesses Civil Parties and experts proposed by the Parties in their Revised Lists It does not

address requests for additional witnesses made pursuant to IR 87 4 which have been the

subject of separate decisions throughout the proceedings in Case 002 02 Further the current

analysis is based on an assessment of the relevance of these proposed witnesses Civil Parties

and experts The assessment of the evidence heard during Case 002 02 as a whole and what weight will be given to each piece of evidence will be carried out in the verdict

19 The Chamber also notes that when listing the witnesses Civil Parties and experts

proposed by the Parties it uses the spelling of their names as it appears in the Parties’ Revised

Lists whereas in the other parts of the decision it uses the spelling names as they appear in

39 the Final List of witnesses Civil Parties and experts heard in Case 002 02

20 The Chamber called to be questioned individuals considered to be most conducive to ascertaining the truth in relation to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre Worksites Treatment of Targeted Groups Security Centres and Internal Purges Regulation of Marriage Nature of the Armed Conflict and Role of the Accused These

individuals are identified below The Trial Chamber has emphasised on a previous occasion

that no clear lines can be drawn between topics into which Case 002 02 is divided and it is

highly possible that a witness Civil Party or expert called to testify on one particular topic

37 See Information on 1 Key Document Presentation Hearings in Case 002 02 and 2 Hearings on Harm Suffered by the Civil Parties in Case 002 02 E315 1 17 December 2014 paras7 9 Email from Legal Officer to the Parties 24 July 2015 and T 1 April 2015 p 33 38 IR 84 4 39 Annex Final List of Witnesses Civil Parties and Experts for Case 002 02 E454 1 27 December 2016

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 12 July 2017 ERN>01515976 002 19 09 2007 ECCC TC E459

40 also gave evidence in relation to one or more other topics Further the Chamber notes that

in relation to the implementation of some nationwide policies such as the treatment of the

targeted groups the underlying offences with which the Accused have been charged are

41 limited to specific crimes sites or locations While the Chamber has directed the Parties to

focus the evidence on underlying offences to the specific crimes sites and locations in which

they are charged it has allowed evidence on the corresponding nationwide policies even if it

extended beyond those specific crimes sites or locations

21 In total of the 289 witnesses Civil Parties and experts proposed by the Parties in their

42 Revised Lists the Chamber heard 133 individuals

5 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR

THE TRAM ~~~ AND KRAING ~~ CHAN SECURITY CENTRE

TRIAL TOPIC

22 The following witnesses Civil Parties and experts were proposed by the Parties in their Revised Lists specifically in regard to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre

a The Co Prosecutors

1 BECKER Elizabeth 2 TCE 97 2 UL Hoeun 2 TCW 822 3 RIEL San 2 TCW 860 4 NUT Nov 2 TCW 948 5 CHOU Koemlan 2 TCCP 238 6 SAO Hean 2 TCW 807 7 CHEANG Sreimom 2 TCW 834 8 PHNEOU Yav 2 TCW934 9 TUON Taem 2 TCW 875 10 EM Phoeung 2 TCW 954 11 TOEM Hy 2 TCW 833 12 MEAS Sokha 2 TCW 936 13 TEP Ngoen 2 TCW 930 14 SAO Lân 2 TCCP 290

40 Decision on Sequencing of Trial Proceedings in Case 002 02 E315 12 September 2014 para 7 41 Decision on Additional Severance of Case 002 Scope of Case 002 02 E301 9 1 4 April 2014 Annex E3 07 9 1 1 42 These numbers exclude individuals requested and summonsed on the basis of IR 87 4 requests for additional witnesses Civil Parties and experts

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 13 July 2017 ERN>01515977 002 19 09 2007 ECCC TC E459

15 SAY Sen 2 TCCP 271 16 VANN Soan 2 TCW 847 17 SREI Than alias Duch 2 TCW 944 18 IEP Duch 2 TCW 815 19 PECH Chim 2 TCW 809 20 TA San 2 TCW 803 21 HARRIS Ian 2 TCE 86

22 MEAS Sarat reserve 2 TCW 821

23 SOK Soth reserve 2 TCW 862

24 NEANG Dam reserve 2 TCW 802

25 THANN Thim reserve 2 TCCP 288 26 SAURT Saing reserve 2 TCCP 304 27 SOK Sim reserve 2 TCW 922 43 28 PHAN Chhen reserve 2 TCW 852

b The Lead Co Lawyers

1 HONG Sok 2 TCCP 282 2 IM Vannak 2 TCCP 256 3 ORN ORM Em 2 TCCP 297 4 OUM OM Suphany 2 TCCP 296 5 RY Pov 2 TCCP 303 6 SAUT Saroeun 2 TCCP 217 7 SAY Sen 2 TCCP 271 8 SENG Sivutha 2 TCCP 218 9 BUN Saroeun 2 TCCP 293 44 10 CHHIM Chheak Chiek 2 TCCP 239

c The NUON Chea Defence

1 PECH Chim 2 TCW 809 45 2 CHHANG Youk 2 TCW 870

23 The KHIEU Samphan Defence did not propose any witness or Civil Party specifically in regard to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre A number of

43 On 28 July 2014 the Co Prosecutors filed a further revised witnesses Civil Parties and expert list They withdrew CHAN Choeun and KAOH Lim from their Revised List Co Prosecutors’ Rule 87 4 Motion Regarding Proposed Witnesses for Case 002 02 E307 3 2 28 July 2014 para 23 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 The Chamber’s decision not to hear reserve Witness MEAS Sarat 2 TCW 821 was taken in a separate decision see Reasons Following Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre and Decision on SANN Lorn 2 TCW 1007 SOU Phirin 2 TCW 1027 and IV Sarik 2 TCW 1026 E346 2 E346 3 31 March 2016 44 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 45 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 PECH Chim was also proposed by the OCP see above para 22

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 14 July 2017 ERN>01515978 002 19 09 2007 ECCC TC E459

individuals were proposed as relevant to a range of Case 002 02 topics including but not

limited to this one The individuals proposed are Roel BURGLER 2 TCE 96 Philip SHORT 2 TCE 92 Michael VICKERY 2 TCE 94 Stephen HEDER 2 TCE 87 and

46 François PONCHAUD 2 TCE 99

24 In addition to the witnesses requested for this first topic the NUON Chea Defence requested that two witnesses relevant to later topics Richard DUDMAN 2 TCW 923 and

Walter HEYNOWSKI 2 TCW 946 be heard on an expedited basis and possibly by video-

47 link due to their advanced age

5 1 Witnesses Civil Parties and Experts heard by the Chamber

25 The Trial Chamber selected and heard the following witnesses Civil Parties and expert in relation to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre Witness MEAS Sokha alias Thlang 2 TCW 936 Civil Party OUM Suphany OM Suphany 2 TCCP 296 Civil Party CHOU Koemlan 2 TCCP 238 Witness EM Phoeung 2 TCW 954 Witness CHANG Srey Mom CHEANG Sreimom 2 TCW 834 Witness KEO

48 Chandara KEV Chandara alias KROU alias Yav 2 TCW 964 Civil Party SORY Sen SAY Sen 2 TCCP 271 Civil Party RY Pov Peou 2 TCCP 303 Witness PHNEOU Yav

2 TCW 934 Witness SAO Han 2 TCW 807 Witness SREI Than alias DUCH 2 TCW

944 Witness PHANN Chhen 2 TCW 852 Witness VAN Soeun VANN Soan 2 TCW

847 Witness NEANG Ouch alias Ta San 2 TCW 803 Witness NUT Nov 2 TCW 948

Witness RIEL Son 2 TCW 860 Civil Party SAUT Saing SOTR Saing 2 TCCP 304

49 Civil Party OEM Saroeum OUNG SA Reoung 2 TCCP 980 Witness Richard Beebe DUDMAN 2 TCW 923 Civil Party THANN Thim 2 TCCP 288 Witness PECH Chim

46 See Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection E305 5 2 9 May 2014 Demande de la Défense de M KHIEU Samphân tendant à la comparution d’un nouvel expert au cours du procès 002 02 règle 87 4 du Règlement intérieur E307 2 19 June 2014 47 T 30 July 2014 Further Initial Hearing pp 46 92 Richard DUDMAN was heard via video link see Trial Chamber Memorandum Request for Video Link for 2 TCW 923 Richard DUDMAN E334 13 January 2015 The Chamber notes that Walter HEYNOWSKI 2 TCW 946 ’s testimony is relevant to the trial topic on security centres specifically S 21 and he will therefore be addressed in the section dealing with that trial topic see paras 127 130 48 The Chamber selected KEO Chandara KEV Chandara alias KROU alias Yav 2 TCW 964 on its own motion 49 Decision on Civil Party Lead Co Lawyers’ Rule 87 4 Request Regarding Civil Party D22 2500 with Confidential Annex A E344 1 31 March 2015

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 15 July 2017 ERN>01515979 002 19 09 2007 ECCC TC E459

50 alias TA Chim 2 TCW 809 Witness KHOEM Boeun alias Yeay Boeun 2 TCW 979

Witness EK Hoeun UL Hoeun 2 TCW 822 Witness VONG Sarun VORNG Sarun 2

51 TCW 986 and expert Elizabeth BECKER 2 TCE 97

26 The Chamber also heard the following Civil Parties on the harm they suffered during the

Democratic Kampuchea era ~~~ Sann 2 TCCP 982 EAM Yen IEM Yen 2 TCCP 985 BENG Boeun 2 TCCP 981 YEM Khonny 2 TCCP 983 BUN Saroeun 2 TCCP 293 IM Vannak OUM Vannak 2 TCCP 256 and LOEP Neang 2 TCCP 984 THANN Thim

2 TCCP 288 was also heard on his suffering but was later recalled to be further questioned

52 on matters of fact

27 In total the Trial Chamber heard 17 witnesses 14 Civil Parties and 1 expert during the

trial segment allocated to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre

5 2 Deceased or Withdrawn

28 The following witnesses could not be considered as they are deceased

53 1 Professor Ian HARRIS 2 TCE 86 54 2 SOK Soth 2 TCW 862 55 3 IEP Duch 2 TCW 815 56 4 NEANG Dam 2 TCW 802

The requests to summons them are therefore moot

29 The request to hear HONG Sok 2 TCCP 282 is rejected as it was withdrawn by the

57 Lead Co Lawyers without objections by the other Parties

50 Decision on International Co Prosecutor’s Request Pursuant to Rules 87 3 87 4 to Admit Documents and to Hear an Additional Trial Witness Relating to the Tram ~~~ District Kraing ~~ Chan Segment of Case 002 02 E319 17 1 8 April 2015 paras 6 8 51 VONG Sarun VORNG Sarun 2 TCW 986 was called pursuant to a NUON Chea Defence request to call additional witnesses See Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to Hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram Kok Cooperatives and Kraing ~~ Chan Security Centre confidential E346 2 30 April 2015 p 2 52 T 2 April 2015 pp 54 55 T 21 April 2015 p 3 53 http iabsinfo net 2015 01 professor ian charles harris last accessed 1 July 2015 54 Strictly Confidential WESU Report Witness SOK Soth E29 464 5 October 2014 Strictly Confidential Death Certificate of SOK Soth E29 464 1 9 October 2014 55 Strictly Confidential WESU Report Witness IEP Duch E29 462 4 October 2014 Strictly Confidential Death Certificate of IEP Duch E29 462 1 9 October 2014 56 Strictly Confidential WESU report NEANG Dam E29 463 5 October 2014

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 16 July 2017 ERN>01515980 002 19 09 2007 ECCC TC E459

5 3 Repetitive and or Irrelevant and or Less Relevant

5 3 1 Individuals proposed by the Co Prosecutors

30 The Co Prosecutors proposed Witness SOK Sim 2 TCW 922 as reserve witness for the

trial topic on Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre According to the

summary of his proposed testimony he could testify primarily on the living conditions in the Tram ~~~ Cooperatives communications structure and joint criminal enterprise factual findings in relation to cooperatives and worksites Additionally he is also proposed to testify

58 on the treatment of Buddhists and the regulation of marriage Having reviewed the material

on the Case File relevant to this witness59 and noting the matters on which he is proposed to testify the Chamber finds that his testimony in relation to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre trial topic is likely to be substantially repetitive of the

evidence heard on these matters in Case 002 02 from several witnesses including RIEL Son 2 TCW 860 NUT Nov 2 TCW 948 EM Phoeung 2 TCW 954 MEAS Sokha alias Thlang 2 TCW 936 CHOU Koemlan 2 TCCP 238 KEO Chandara KEV Chandara

alias KROU alias Yav 2 TCW 964 VAN Soeun VANN Soan 2 TCW 847 PHNEOU

Yav 2 TCW 934 NEANG Ouch alias Ta San 2 TCW 803 SREI Than alias DUCH 2

TCW 944 THANN Thim 2 TCCP 288 SORY Sen SAY Sen 2 TCCP 271 and SAUT

60 Saing SOTR Saing 2 TCCP 304 The Chamber also notes that the Witness’s statements

only marginally touch on the treatment of the Buddhists and the regulation of marriage and

that in any event the Parties have proposed other witnesses and Civil Parties they deemed

more relevant to those topics The Chamber therefore decides not to summons this witness

31 Witness TUON Taem 2 TCW 875 ’s testimony was proposed as being potentially

relevant to the treatment of specific groups at the Tram ~~~ Cooperatives and the treatment of

61 Buddhists Having reviewed the material on the Case File relevant to this witness62 and

57 Mémoire Informant du Retrait de la Partie Civile 2 TCCP 282 de la Liste des Parties Civiles Appelées devant la Chambre de Première Instance E305 7 1 3 E2 40 14 Octobre 2014 informing the Chamber that 2 TCCP 282 was no longer fit to testify due to health issues and memory impairment 58 Confidential Annex IIIA OCP Updated Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 p 4 59 Written Record oflnterview of SOK Sim E3 5519 17 December 2009 60 See e g T 8 January 2015 MEAS Sokha alias Thlang T 27 January 2015 CHOU Koemlan T 17 February 2015 PHEOU Yav T 3 March 2015 VAN Soeun VANN Soan T 4 February 2015 KEO Chandara KEV Chandara alias KROU alias Yav T 10 March 2015 NEANG Ouch alias Ta San T 12 March 2015 NUT Nov T 17 March 2015 RIEL Son 61 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 p 14 62 Complaint of TUON Taem 08 VU 01750 E3 5379 15 August 2013

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 17 July 2017 ERN>01515981 002 19 09 2007 ECCC TC E459

noting the matters on which he is proposed to testify the Chamber finds that his testimony in relation to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre trial topic is

likely to be substantially repetitive of evidence heard on these matters in Case 002 02 from several witnesses including RIEL Son 2 TCW 860 CHANG Srey Mom CHEANG Sreimom 2 TCW 834 EM Phoeung 2 TCW 954 PHNEOU Yav 2 TCW 934 and

63 PHANN Chhen 2 TCW 852 The Chamber therefore decides not to summons this witness

32 Witness TOEM Hy 2 TCW 833 ’s testimony was proposed as being potentially relevant to the Kraing ~~ Chan Security Centre and the treatment of the detainees there

including interrogation and beatings Having reviewed the material on the Case File relevant

64 to this witness and noting the matters on which he is proposed to testify the Chamber finds

that his testimony is likely to be substantially repetitive of evidence heard on these matters in Case 002 02 from several witnesses including RIEL Son 2 TCW 860 CHANG Srey Mom

CHEANG Sreimom 2 TCW 834 SREI Than alias DUCH 2 TCW 944 PHANN Chhen

2 TCW 852 THANN Thim 2 TCCP 288 SORY Sen SAY Sen 2 TCCP 271 SAUT

Saing SOTR Saing 2 TCCP 304 NUT Nov 2 TCW 948 EM Phoeung 2 TCW 954

65 and NEANG Ouch alias Ta San 2 TCW 803 The Chamber therefore decides not to

summons this witness

33 The Co Prosecutors proposed TEP Ngoen’s 2 TCW 930 testimony as being potentially relevant to the treatment of Buddhists arrest and detention at Kraing Ta Chan Security Centre

66 and living and working conditions in the Tram ~~~ Cooperatives Having reviewed the

material on the Case File relevant to this witness and noting the matters on which she is

63 See T 17 March 2015 RIEL Son T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 27 January 2015 EM Phoeung and 16 February 2015 EM Phoeung T 17 February 2015 PHNEOU Yav T 25 February 2015 PHANN Chhen 64 Complaint of TOEM Hi 08 VU 01680 E3 7073a 18 August 2008 Written Record of Interview of TOEM ~~ E3 9605 6 December 2013 The Chamber notes that it had initially deferred a decision on whether to call this witness until the trial topic on the Internal Purges However this witness was ultimately not selected for that topic as the Chamber found his evidence to be of lesser relevance then that of other individuals proposed by the Parties for that trial topic See Reasons Following Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre and Decision on SANN Lorn 2 TCW 1007 SOU Phirin 2 TCW 1027 and IV Sarik 2 TCW 1026 E346 2 E346 3 31 March 2016 para 52 see also below paras 131 143 65 See T 17 18 March 2015 RIEL Son T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 21 April 2015 THANN Thim T 23 24 February 2015 SREI Than alias DUCH T 24 25 February 2015 PHANN Chhen T 4 February 2015 SORY Sen SAY Sen T 24 March 2015 SAUT Saing SOTR Saing T 12 March 2015 NUT Nov T 17 February 2015 PHNEOU Yav T 10 March 2015 NEANG Ouch alias Ta San 66 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 p 13 Confidential Co Prosecutors’ Rule 87 4 Motion Regarding Proposed Trial Witnesses for Case 002 02 E307 3 2 28 July 2014 para 43

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 18 July 2017 ERN>01515982 002 19 09 2007 ECCC TC E459

proposed to testify the Chamber finds that her testimony in relation to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre trial topic including the treatment of the

Buddhists is likely to be substantially repetitive of evidence heard on these matters in Case 002 02 from several witnesses including RIEL Son 2 TCW 860 CHANG Srey Mom CHEANG Sreimom 2 TCW 834 EM Phoeung 2 TCW 954 PHNEOU Yav 2 TCW

934 SREI Than alias DUCH 2 TCW 944 PHANN Chhen 2 TCW 852 THANN Thim

2 TCCP 288 SORY Sen SAY Sen 2 TCCP 271 NUT Nov 2 TCW 948 and SAUT

67 Saing SOTR Saing 2 TCCP 304 The Chamber therefore decides not to summons this

witness

34 The Co Prosecutors proposed Civil Party SAO Lan 2 TCCP 290 as being potentially relevant to arrests detention disappearances and executions at Kraing Ta Chan Security

Centre living and working conditions security and the treatment of specific groups at the

68 Tram ~~~ Cooperatives and the regulation of marriage Having reviewed the material on the

Case File relevant to this Civil Party and noting the matters on which she is proposed to testify the Chamber finds that her in court statement in relation to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre trial topic is likely to be substantially

repetitive of evidence heard on these matters in Case 002 02 from several witnesses including RIEL Son 2 TCW 860 PHNEOU Yav 2 TCW 934 CHANG Srey Mom CHEANG

Sreimom 2 TCW 834 SREI Than alias DUCH 2 TCW 944 PHANN Chhen 2 TCW

852 THANN Thim 2 TCCP 288 SORY Sen SAY Sen 2 TCCP 271 SAUT Saing SOTR Saing 2 TCCP 304 NUT Nov 2 TCW 948 EM Phoeung 2 TCW954 and

69 NEANG Ouch alias Ta San 2 TCW 803 Further while the Civil Party indicates that she

70 attended an event at which 30 couples were allegedly forced to marry her examination in

court on this topic is not necessary as her evidence is likely to be substantially repetitive of

67 See T 17 18 March 2015 RIEL Son T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 27 January 2015 EM Phoeung and 16 February 2015 EM Phoeung T 17 February 2015 PHNEOU Yav T 25 February 2015 PHANN Chhen T 12 March 2015 NUT Nov T 4 February 2015 SORY Sen SAY Sen T 24 March 2015 SAUT Saing SOTR Saing T 21 April 2015 THANN Thim 68 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 14 38 69 See T 17 18 March 2015 RIEL Son T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 21 April 2015 THANN Thim T 23 24 February 2015 SREI Than alias DUCH T 24 25 February 2015 PHANN Chhen T 4 February 2015 SORY Sen SAY Sen T 24 March 2015 SAUT Saing SOTR Saing T 12 March 2015 NUT Nov T 17 February 2015 PHNEOU Yav T 10 March 2015 NEANG Ouch alias Ta San 70 Supplementary Information of SAO Lan E3 5904a 3 October 2012 para 3

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 19 July 2017 ERN>01515983 002 19 09 2007 ECCC TC E459

71 testimonies the Chamber has heard throughout Case 002 02 The Chamber therefore decides

not to summons this Civil Party

5 3 2 Individuals proposed by the Lead Co Lawyers

35 The Lead Co Lawyers proposed Civil Party ORN ORM Em 2 TCCP 297 as potentially relevant to various points of the Closing Order pertaining to the Tram ~~~

Cooperatives including the alleged policy on worksites and cooperatives the existence structure living and working conditions of the Tram ~~~ Cooperatives the treatment of

specific groups and the alleged role of the Accused in the implementation of the policy on

72 cooperatives and worksites without further elaboration Having reviewed the material on the Case File relevant to this Civil Party the Chamber does not find her relevance in relation

73 to the role of the Accused has been demonstrated As relates to the remainder of the

information this Civil Party could provide to the Chamber it is unclear whether he would be

74 able to testify on living conditions at the Tram ~~~ Cooperatives In any event to the extent

to which he would be able to testily on the matters regarding the Tram ~~~ Cooperatives the Chamber finds that this Civil Party’s in court statement is likely to be substantially repetitive

of evidence heard on these matters in Case 002 02 from several witnesses and Civil Parties

including NUT Nov 2 TCW 948 RIEL Son 2 TCW 860 PHNEOU Yav 2 TCW 934 CHANG Srey Mom CHEANG Sreimom 2 TCW834 SREI Than alias DUCH 2 TCW

944 PHANN Chhen 2 TCW 852 THANN Thim 2 TCCP 288 SORY Sen SAY Sen 2

TCCP 271 SAUT Saing SOTR Saing 2 TCCP 304 EM Phoeung 2 TCW 954 and

75 NEANG Ouch alias Ta San 2 TCW 803 Finally while this Civil Party’s admitted

application also provides an account of his own experience of forced marriage his

examination in court on this topic is not necessary as his evidence is likely to be substantially

71 See e g T 26 27 January 2015 CHOU Koemlan T 26 January 2015 OUM Suphany OM Suphany T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 16 February 2015 EM Phoeung 17 February 2015 PHNEOU Yav T 18 March 2015 RIEL Son T 10 11 March 2015 NEANG Ouch alias Ta San See also below paras 145 160 72 Confidential Annex III Confidential Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 22 73 Supplementary Information of Civil Party applicant ORN Em E3 4982 8 February 2010 22 April 2010 22 June 2010 74 Civil Party Application of ORN Em E3 6562 25 February 2015 75 See T 17 18 March 2015 RIEL Son T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 21 April 2015 THANN Thim T 19 23 24 February 2015 SREI Than alias DUCH T 24 25 February 2015 PHANN Chhen T 4 February 2015 SORY Sen SAY Sen T 24 March 2015 SAUT Saing SOTR Saing T 27 January 2015 EM Phoeung and 16 February 2015 EM Phoeung T 12 March 2015 NUT Nov T 17 February 2015 PHNEOU Yav T 10 March 2015 NEANG Ouch alias Ta San

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 20 July 2017 ERN>01515984 002 19 09 2007 ECCC TC E459

76 repetitive of testimonies the Chamber has heard throughout Case 002 02 The Chamber

therefore decides not to summons this Civil Party

36 The Lead Co Lawyers proposed Civil Party SENG Sivutha 2 TCCP 218 as potentially relevant to various points in the Closing Order pertaining to the Tram ~~~ Cooperatives

including the alleged policy on worksites and cooperatives the existence structure living and

working conditions the treatment of specific groups and the alleged role of the Accused in the

77 implementation of the policy on cooperatives and worksites SENG Sivutha was heard during the Case 002 01 proceedings regarding the harm she suffered during the Democratic

78 Kampuchea Having reviewed the material relevant to this Civil Party and noting the matters

on which she is proposed to testify the Chamber finds that contrary to the Lead Co Lawyers’

submission that she can be relevant to the role of the Accused the basis for this assumption

79 has not been demonstrated Regarding the other matters on which she is proposed to be

heard the Chamber recalls that she has already been heard in Case 002 01 on her suffering

and finds that any further in court statement she may provide in relation to the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre trial topic is likely to be substantially

repetitive of evidence already heard on these matters in Case 002 02 from several witnesses and Civil Parties including NUT Nov 2 TCW 948 RIEL Son 2 TCE 860 PHNEOU Yav 2 TCW 934 CHANG Srey Mom CHEANG Sreimom 2 TCW 834 SREI Than alias

DUCH 2 TCW 844 PHANN Chhen 2 TCW 852 THANN Thim 2 TCCP 288 SORY

Sen SAY Seng 2 TCCP 271 SAUT Saing SOTR Saing 2 TCCP 304 and EM Phoeung

80 2 TCW 954 The Chamber therefore decides not to summons this Civil Party

37 The Lead Co Lawyers proposed SAUT Saroeun 2 TCCP 217 as potentially relevant to

enslavement detention and other crimes at the Tram ~~~ Cooperatives as well as the

76 See for example T 26 27 January 2015 CHOU Koemlan T 26 January 2015 OUM Suphany OM Suphany T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 16 February 2015 EM Phoeung 17 February 2015 PHNEOU Yav T 18 March 2015 RIEL Son T 10 11 March 2015 NEANG Ouch alias Ta San See also below paras 145 160 77 Confidential Annex III Confidential Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 32 33 78 T 4 June 2013 pp 90 117 19 Supplementary Information of SENG Sivutha E3 4622a 1 April 2011 Confidential Civil Party application of SENG Sivutha E3 5745 4 January 2010 Confidential Victim Unit’s report on Civil Party Applicant D22 3804 1 30 April 2010 80 See T 17 18 March 2015 RIEL Son T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 21 April 2015 THANN Thim T 19 23 24 February 2015 SREI Than alias DUCH T 24 25 February 2015 PHANN Chhen T 4 February 2015 SORY Sen SAY Sen T 24 March 2015 SAUT Saing SOTR Saing T 3 March 2015 VAN Soeun VANN Soan T 27 January 2015 EM Phoeung and 16 February 2015 EM Phoeung T 12 March 2015 NUT Nov T 17 February 2015 PHNEOU Yav

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 21 July 2017 ERN>01515985 002 19 09 2007 ECCC TC E459

81 detention conditions at two prisons where he was detained Having reviewed the material on

the Case File relevant to this Civil Party and noting the matters on which he is proposed to be heard the Chamber notes that his in court statement is likely to be limited to his imprisonment at Sanlong Mountain and Prey Kduoch prisons and the living conditions

82 therein The Chamber notes that events in these two prisons are not mentioned in the

Closing Order and his account in this regard would therefore go beyond the scope of Case

83 002 02 As regards the crimes committed in the Tram ~~~ Cooperatives the Trial Chamber

finds that his in court statement is likely to be substantially repetitive of evidence heard on these matters in Case 002 02 from several witnesses including MEAS Sokha alias Thlang 2 TCW 936 RIEL Son 2 TCW 860 EM Phoeung 2 TCW 954 PHNEOU Yav 2 TCW 934 NEACH Ouch alias Ta San 2 TCW 803 and OUM Suphany OM Suphany 2

84 TCCP 296 The Chamber therefore decides not to summons this Civil Party

38 The Lead Co Lawyers have included in their list four individuals BUN Khen 2 TCCP 257 MOM Vanny 2 TCCP 265 CHHIM Chheak Chiek 2 TCCP 239 PRUM Tra 2

TCCP 301 whose proposed evidence apparently has no immediate link with the Tram ~~~

Cooperatives but seems rather relevant to the treatment of Buddhists in various locations

85 outside the Tram ~~~ district In this regard the Chamber recalls that facts concerning the

implementation of a policy targeting Buddhists should be limited to Tram ~~~

86 Cooperatives While the information contained in these Civil Parties’ applications or related

documents may be relevant to establish whether a policy to target Buddhists existed the

Chamber considers that the examination in court of these Civil Parties on such matter is of

limited relevance and likely to be substantially repetitive of testimonies the Chamber has

81 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 29 30 82 Confidential Civil Party application of SAUT Saroeun E3 6477 1 June 2009 Confidential Supplementary Information of SAUT Saroeun E3 6477a 5 December 2011 83 See Closing Order paras 302 322 See also Decision on Sequencing of Trial Proceedings in Case 002 02 E315 12 September 2014 Annex List of paragraphs and portions of the Closing Order relevant to Case 002 02 E301 9 1 1 E315 301 9 1 1 84 See T 8 January 2015 MEAS Sokha alias Thlang T 21 22 January 2015 MEAS Sokha alias Thlang T 17 18 March 2015 RIEL Son T 16 February 2015 EM Phoeung T 17 February 2015 PHNEOU Yav T 9 10 March 2015 NEANG Ouch alias Ta San T 22 23 January 2015 OUM Suphany OM Suphany 85 In particular AU village Kmar commune Pursat province BUN Khen 2 TCCP 257 see Civil Party Application of BUN Khen E3 6185 9 January 2008 Svay At Pagoda Prey Veng district Prey Veng province MOM Vanny 2 TCCP 265 see Civil Party Application of MOM Vanny E3 6668 16 October 2009 Wat Damnak Trayoeng Damnak village Khcheay Khang Cheung commune Dang Tong district Kampot province CHHIM Chheak Chiek 2 TCCP 239 see Additional information of the Victim E3 4711 1 June 2009 Roveang district Preah Vihear province PRUM Tra 2 TCCP 301 see Civil Party Application of PRUM Tra E3 6642 7 August 2009 86 Decision on Additional Severance of Case 002 Scope of Case 002 02 E301 9 1 4 April 2014 para 38 Decision on Sequencing of Trial Proceedings in Case 002 02 E315 para 14

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 22 July 2017 ERN>01515986 002 19 09 2007 ECCC TC E459

87 heard throughout Case 002 02 The Chamber therefore decides not to summons these Civil

Parties

5 3 3 Individuals proposed by the NUON Chea Defence

39 The NUON Chea Defence proposed CHHANG Youk 2 TCW 870 Executive Director

of the Documentation Center of Cambodia ‘DC CAM’ to testify on the content authenticity and chain of custody of DC CAM documents The Defence asserted that his

insight may assist in establishing facts including but not limited to S 21 and Kraing Ta

88 Chan The Chamber recalls that CHHANG Youk 2 TCW 870 previously testified before the Chamber in the Case 002 01 proceedings and that this testimony is already admitted in

89 Case 002 Having reviewed CHHANG Youk 2 TCW 870 ’s prior testimony which

includes evidence on the background of DC CAM as well as DC CAM’s collection and

90 processing of documents the Chamber finds that his proposed testimony in Case 002 02 is likely to be substantially repetitive of his Case 002 01 testimony Specifically concerning

evidence on the chain of custody and location of a number of original documents relevant to

Kraing Ta Chan the Chamber notes that it has denied a NUON Chea Defence request to hear

two additional witnesses on this issue The Chamber ruled that it was not convinced that the

testimony of the proposed additional witnesses was suitable to prove the facts it was

purported to prove and found that engaging in additional investigations at this stage to locate

91 the original of these documents would cause an unreasonable delay to the proceedings For

the above reasons the Chamber decides not to summons CHHANG Youk 2 TCW 870

87 See T 17 March 2015 RIEL Son T 17 February 2015 PHNEOU Yav T 29 January 2015 CHANG Srey Mom CHEANG Sreimom T 27 January 2015 EM Phoeung T 16 February 2015 EM Phoeung T 7 8 May 2015 KHOEM Boeun alias Yeay Boeun T 22 23 April 2015 PECH Chim alias TA Chim T 5 October 2015 BAN Seak BAN Siek alias HANG Phos T 16 September 2015 TAY Koemhun TAY Kimhuon alias Kimhuon T 1 2 March 2016 UCH Sunlay 88 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 3 89 Trial Chamber memorandum entitled “Clarification regarding the use of evidence and the procedure for recall of witnesses Civil Parties and experts from Case 002 01 in Case 002 02” E302 5 7 February 2014 para 7 See T 1 February 2012 2 February 2012 and 3 February 2012 90 See T 1 February 2012 2 February 2012 and 3 February 2012 Written Record of Interview of CHHANG Youk E3 188 28 May 2009 91 Reasons Following Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to Hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre and Decision on SANN Lorn 2 TCW 1007 SOU Phirin 2 TCW 1027 and IV Sarik 2 TCW 1026 E346 2 346 3 31 March 2016 paras 55 64 As regards the S 21 documents see below paras 124 126

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 23 July 2017 ERN>01515987 002 19 09 2007 ECCC TC E459

5 4 General Witnesses

40 The Chamber also recalls that the individuals proposed by the KHIEU Samphan Defence

are relevant to a range of Case 002 02 topics including but not limited to this one They are

92 addressed in other sections of this decision The Trial Chamber has already rejected the

93 requests to call Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 and

94 confirmed that Michael VICKERY 2 TCE 94 would not testify as an expert in this case

6 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR

THE WORKSITES TRIAL TOPIC

41 The Co Prosecutors and Lead Co Lawyers proposed that the Chamber hear the

following witnesses and Civil Parties on the worksites at the 1st January Dam the Kampong Chhnang Airport and the Trapeang Thma Dam

6 1 1st January Dam Worksite

a The Co Prosecutors

1 IENG Chham 2 TCW 912 2 PECH Sokha 2 TCW 909 3 Urn Chi 2 TCW 926 4 YEAN Lun 2 TCW 830 5 UT Seng 2 TCW 804 6 MEAS Laihuo 2 TCW 851 7 SOU Soeun 2 TCW 887

8 KE Un 2 TCW 896 reserve witness

9 KANG Ut 2 TCW 855 reserve witness and 95 10 AU Hau 2 TCW 836 reserve witness

92 Roel BURGLER 2 TCE 96 Philip SHORT 2 TCE 92 and Michael VICKERY 2 TCE 94 are addressed in the general section on experts see below paras 187 190 193 194 See Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection E305 5 2 9 May 2014 Demande de la Défense de M KHIEU Samphân tendant à la comparution d’un nouvel expert au cours du procès 002 02 règle 87 4 du Règlement intérieur E307 2 19 June 2014 93 The Trial Chamber rejected the requests to call Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 See Decision on Reiterated Request of KHIEU Samphan Defence to Hear Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 E408 6 E408 6 2 3 November 2016 94 See Outstanding issues relating to Expert Michael VICKERY 2 TCE 94 E408 5 4 August 2016 see below paras 187 194 95 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 2

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 24 July 2017 ERN>01515988 002 19 09 2007 ECCC TC E459

b The Lead Co Lawyers

1 CHEA Marie 2 TCCP 294 2 CHHOEM Rin alias CHHIM Rin 2 TCCP 228 3 HUN Sethany 2 TCCP 255 4 ROS Chay Laim 2 TCCP 278 5 SEANG Sovida 2 TCCP 273 6 TULOH Slai Man 2 TCCP 227 7 TY Pho 2 TCCP 229 and 96 8 UN Ran 2 TCCP 230

6 2 Kampong Chhnang Airport

a The Co Prosecutors

1 KHIN Vat 2 TCW 866 2 KEO Leou alias KEV Sophal 2 TCW 932 3 KEV Kin 2 TCW 910 4 TES Trech 2 TCW 891 5 CHAN Man 2 TCW 975 97 6 SEM Hoeun 2 TCW 943 reserve witness

7 SUM Sokhan 2 TCW 911 reserve witness

8 HIM Han 2 TCW 901 reserve witness and 98 9 CHE Heap 2 TCCP 275 reserve witness

b The Lead Co Lawyers

1 CHUM Samoeurn 2 TCCP 247 and 99 2 KONG Siek 2 TCCP 261

96 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 p 3 91 SEM Hoeun 2 TCW 943 was previously proposed by the Co Prosecutors as witness for this trial topic but was subsequently withdrawn and listed as a reserve witness see Co Prosecutors’ Rule 87 4 Motion Regarding Proposed Trial Witnesses for Case 002 02 confidential E307 3 2 28 July 2014 para 23 fn 37 98 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 2 PRAK Yoeun 2 TCW 882 and KOY Mon 2 TCW 879 were previously proposed by the Co Prosecutors as witnesses for this trial topic but were subsequently withdrawn KOY Mon 2 TCW 879 was identified as deceased see Co Prosecutors’ Rule 87 4 Motion Regarding Proposed Trial Witnesses for Case 002 02 confidential E307 3 2 28 July 2014 para 23 Interoffice Memorandum from Witness and Expert Support Unit to Senior Legal Officer of Trial Chamber entitled “Deceased TCW 356 HIM Hun also known as KOY Mon” confidential E236 1 3 25 January 2013 the Chamber notes that CHE Heap 2 TCCP 275 was heard during the hearing on harm suffered by the Civil Parties during the trial topic on Security Centres and Internal Purges see para 98 99 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 p 3

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 25 July 2017 ERN>01515989 002 19 09 2007 ECCC TC E459

6 3 Trapeang Thma Dam

1 The Co Prosecutors

1 SAOM Phan 2 TCW 876 2 LAT Suoy 2 TCW 889 3 SOT Phal 2 TCW 845 4 PAN Chhuong 2 TCW 918 5 CHHIT Yoeuk 2 TCW 937 6 CHHUM Seng 2 TCW 828 7 CHHIT In 2 TCW 861 8 CHHUY Huy 2 TCW 915 reserve witness 9 IM Chaem 2 TCW 924 reserve witness

10 KAN Thol 2 TCW 881 reserve witness

11 HENG Samuot 2 TCW 858 reserve witness and 100 12 YI Laisauv 2 TCW 841 reserve witness

2 The Lead Co Lawyers

1 TÂK Buy 2 TCW 908 2 NHIP Horl 2 TCCP 269 3 ORM Mâk 2 TCCP 284 4 SEN Sophon 2 TCCP 220 and 101 5 THUN Hâm 2 TCCP 279

42 The KHIEU Samphan Defence did not propose any witness Civil Party or expert whose

testimony would relate directly to the 1st January Dam Kampong Chhnang Airport or the

Trapeang Thma Dam worksites The KHIEU Samphan Defence proposed experts Roel BURGLER 2 TCE 96 Philip SHORT 2 TCE 92 Michael VICKERY 2 TCE 94

Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 to provide testimony on

102 cooperatives and worksites generally among other subjects Likewise the NUON Chea Defence proposed witnesses CHEA Sim 2 TCW 878 CHHEM Neang 2 TCW 899 POL

103 Saroeun 2 TCW 962 HENG Samrin 2 TCW 831 Richard DUDMAN 2 TCW 923

100 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 2 101 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 p 3 102 Ordonnance aux fins du dépôt de pièces actualisées dans le cadre de la préparation du procès 002 02 confidential E305 5 2 9 May 2014 pp 2 6 103 See Tram ~~~ Cooperatives and Kraing Ta Chan Security Centre section The Chamber notes that the name of POL Saroeun 2 TCW 962 appears to have been misspelled in the NUON Chea Defence Revised List The Chamber will use the correct spelling of the name See Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 p 2

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 26 July 2017 ERN>01515990 002 19 09 2007 ECCC TC E459

CHHANG Youk 2 TCW 870 and experts Laura SUMMERS 2 TCE 100 Ewa TABEAU

2 TCE 93 and Roel BURGLER 2 TCE 96 to testify generally on cooperatives and

104 worksites The NUON Chea Defence also proposed Michael VICKERY 2 TCE 94 as an

expert to testify specifically on the 1st January Dam Kampong Chhnang Airport and

105 Trapeang Thma Dam worksites

6 4 Witnesses Civil Parties and Experts heard by the Chamber

6 4 1 1st January Dam

43 The Trial Chamber selected and heard the following witnesses and Civil Parties in relation to the 1st January Dam site Witness OR Ho AU Hau 2 TCW 836 Witness PECH

Sokha 2 TCW 909 Witness MEAS Laihour MEAS Laihuo 2 TCW 851 Witness UTH

Seng UT Seng 2 TCW 804 Witness SOU Soeum SOU Soeun 2 TCW 887 Witness

YEAN Lon YEAN Lun 2 TCW 830 Witness KONG Uth KANG Ut 2 TCW 855

Witness OM Chy UM Chi 2 TCW 926 Civil Party HUN Sethany 2 TCCP 255 Civil Party UN Rann 2 TCCP 230 Civil Party SEANG Sovida 2 TCCP 273

44 The Chamber also heard the following Civil Parties on the harm they suffered during the

Democratic Kampuchea era NUON Narom 2 TCCP 991 and CHAO Lang 2 TCCP 992

45 In total the Trial Chamber heard 8 witnesses and 5 Civil Parties during the trial segment allocated to the 1st January Dam site

6 4 2 Kampong Chhnang Airport

46 The Trial Chamber selected and heard the following witnesses and Civil Parties in relation to the Kampong Chhnang Airport worksite CHAN Morn Chan Man alias CHUP

Sokhon alias KUY alias Et 2 TCW 975 KEO Kin KEV Kin 2 TCW 910 HIM Han

alias Ream 2 TCW 901 KEO Loeur KEO Leou alias KEV Sophal 2 TCW 932

SEM Hoeurn SEM Hoeun 2 TCW 943 KHIN Vat 2 TCW 866 KONG Siek 2 TCCP

261 and CHUM Samoeum 2 TCCP 247 In total the Trial Chamber heard 6 witnesses and

2 Civil Parties during this trial segment

104 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 3 20 21 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 p 4 105 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 22 23

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 27 July 2017 ERN>01515991 002 19 09 2007 ECCC TC E459

47 TES Trech 2 TCW 891 was proposed as a witness in relation to the Kampong

Chhnang Airport worksite He served as a soldier and medic and previously stated that he

106 witnessed several unit chiefs and superiors arrested The Chamber notes that TES Trech 2

TCW 891 is the same person as NUON Trech TES 01 TES Trech 2 TCW 1060 and that

the Chamber granted the NUON Chea Defence request to hear NUON Trech TES 01 TES

107 Trech 2 TCW 1060 as a witness in relation to the topic on Internal Purges

6 4 3 Trapeang Thma Dam

48 The Trial Chamber selected and heard the following witnesses and Civil Parties in relation to the Trapeang Thma Dam worksite Witness MAM Soeurm alias HENG Samuoth Samout 2 TCW 858 Witness KAN Thol KAN Thor 2 TCW 881 Witness LAT Suoy 2 TCW 889 Witness CHHIT Yoeuk 2 TCW 937 Witness CHHUM Seng 2 TCW 828 Witness TÂK Boy TÂK Buy 2 TCW 908 Witness LING Lrysov YI Laisauv 2 TCW

108 841 Witness CHHUY Huy 2 TCW 915 Witness MUN Mot 2 TCW 996 Witness SOT Sophal SOT Phal 2 TCW 845 Witness PAN Chhuong 2 TCW 918 Civil Party SEN Sophon 2 TCCP 220 and Civil Party NHIP Horl 2 TCCP 269

49 The Trial Chamber also heard Civil Parties SAM Sak 2 TCCP 993 and MEAN

Loeuy 2 TCCP 994 on the harm they suffered during the Democratic Kampuchea period In

total the Trial Chamber heard 11 witnesses and 4 Civil Parties during this trial segment

6 5 Deceased or withdrawn

50 The following witnesses could not be considered as they were deceased

109 1 KE Un 2 TCW 896 no 2 IENG Chham 2 TCW 912 111 3 CHHIT In 2 TCW 861

The requests to summons them are therefore moot

106 Written Record of Interview of TES Trech E3 7877 19 June 2009 107 Decision on NUON Chea Defence Requests to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 108 Decision on NUON Chea’s Rule 87 4 Request to Hear One Additional Witness for the Trial Topic on the Trapeang Thma Dam Worksite confidential E368 1 22 October 2015 109 Witness Expert Support Unit WESU Report Reported Deceased of KE Un confidential E29 471 10 June 2015 Copy of Death Certificate ofKEUn E29 471 1 28 February 2015 110 Witness Expert Support Unit Report Reported Deceased of IENG Chham confidential E29 468 21 February 2015 Death Certificate confidential E29 468 1 18 June 2012 111 Witness Expert Support Unit WESU Report CHHIT In confidential E29 475 10 November 2015

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 28 July 2017 ERN>01515992 002 19 09 2007 ECCC TC E459

51 While initially the Trial Chamber issued a summons to hear proposed Witness SAOM

112 Phan 2 TCW 876 it eventually decided he would no longer be called to testify due to a

113 serious health condition

6 6 Proposed testimony of IM Chaem 2 TCW 924

52 The Co Prosecutors proposed witness IM Chaem 2 TCW 924 to testify with respect to the Trapeang Thma Dam worksite and her involvement in the Dam’s construction by

sending people from her district to the site by setting work targets and by personally visiting

the site The proposed summary of her testimony offered to prove the relevance of her evidence indicated that she would also describe KHIEU Samphan’s frequent visits to the site

to examine the progress of the project and testify about the authority structure of the

Northwest Zone Sector 5 and Preah Net Preah District The Co Prosecutors further submitted

that IM Chaem 2 TCW 924 could testify to the thousands of deaths in her district from

execution starvation and disease and the implementation of the upper echelon’s policy to

114 arrest enemies in the area and the arrest of several senior cadres

53 The Trial Chamber notes that on 18 December 2015 the ~~ Investigating Judges filed

a notice of conclusion of judicial investigation against IM Chaem 2 TCW 924 who had been charged in absentia by the International ~~ Investigating Judge of the ECCC for crimes

115 allegedly committed during the Democratic Kampuchea period On 5 February 2016 the

116 ~~ Investigating Judges severed IM Chaem 2 TCW 924 from Case 004 From the

information made public by the organs of the ECCC the Chamber concludes that many of the

allegations falling within the scope of the current trial largely overlap with those contained in

117 the scope of the judicial investigation against IM Chaem 2 TCW 924

112 See Summons of Witness SAOM Phan confidential E202 188 6 July 2015 113 Witness Expert Support Unit WESU Report SAOM Phan 2 TCW 876 strictly confidential E29 483 1 April 2016 114 Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] confidential E305 6 5 9 May 2014 p 10 115 Notice of Conclusion of Judicial Investigation against IM Chaem OCIJ D285 18 December 2015 ii6 Order for Severance of IM Chaem from Case 004 D286 7 5 February 2016 117 The Chamber notes that on 22 February 2017 the ~~ Investigating Judges dismissed the case against IM Chaem 2 TCW 924 Press Release ~~ Investigating Judges Dismiss Case Against IM Chaem 22 February 2017 See also Public Redacted Closing Order Reasons OCIJ D308 3 10 July 2017 However this decision is subject to appeal and thus IM Chaem 2 TCW 924 still remains a charged person For the purposes of Case 002 02 on 11 January 2017 the Trial Chamber declared that the evidentiary hearings were closed and adjourned proceedings until the closing arguments on 5 June 2017 T 11 January 2017 draft p 35

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 29 July 2017 ERN>01515993 002 19 09 2007 ECCC TC E459

54 The Trial Chamber recalls that Internal Rule 24 4 stipulates that the Chamber should

not call as a witness “any person against whom there is evidence of criminal responsibility

except as provided in Rule 28” Taking into consideration the framework foreseen by Internal

Rules 28 3 b and 28 5 the Chamber decides given the specific context of this case not to

call IM Chaem 2 TCW 924 to testify as a witness

6 7 Repetitive and or Irrelevant and or Less Relevant

6 7 1 1st January Dam

55 The Lead Co Lawyers proposed Civil Parties CHEA Marie 2 TCCP 294 CHHOEM Rin 2 TCCP 228 ROS Chay Laim 2 TCCP 278 TULOH Slai Man 2 TCCP 227 and

TY Pho 2 TCCP 229 to testify on living and working conditions at the 1st January Dam

worksite including forced labour lack of food and medical care and the mistreatment and

118 execution of prisoners Having reviewed the material on the Case File relevant to these

individuals119 and noting the matters on which they are proposed to testify the Chamber finds

that their in court statements on living and working conditions at the 1st January Dam

worksite are likely to be substantially repetitive of the evidence heard on these matters in Case 002 02 from several witnesses including KONG Uth 2 TCW 855 SOU Soeum 2 TCW 887 OR Ho 2 TCW 836 YEAN Lon YEAN Lun 2 TCW 830 and OM Chy UM Chi 2 TCW 926 and Civil Parties CHAO Lang 2 TCCP 992 SEANG Sovida 2 TCCP 273

120 UN Rann 2 TCCP 230 and HUN Sethany 2 TCCP 2 5 5 Therefore the Trial Chamber

decides not to summons these Civil Parties

56 The Chamber notes that the summary of CHEA Marie 2 TCCP 294 ’s proposed

evidence indicated that she could also testify about “medical experimentations” conducted on

121 people However the Chamber finds that the supplemental information to her Civil Party

118 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 5 6 27 28 37 119 See Civil Party Application of CHEA Marie confidential E3 5085 31 May 2009 Supplementary Information of Civil Party CHEA Marie confidential E3 5085A 28 May 2014 Civil Party Application of CHHIM Rin E3 6324 27 February 2008 Civil Party Application of ROS Chay Laim E3 6849 28 March 2008 confidential Supplementary Information of Civil Party Applicant TOULORS Slai Man confidential E3 6545A 7 April 2010 Civil Party Application of TY Pho confidential E3 6899 28 January 2010 Supplementary Information of Civil Party Application of THY Pho confidential E3 6899A 9 June 2010 120 See T 25 June 2015 KONG Uth T 4 5 June 2016 SOU Soeum T 19 20 May 2015 OR Ho T 16 17 June 2015 YEAN Lon T 30 July 2015 OM Chy T 1 September 2015 CHAO Lang T 2 June 2015 SEANG Sovida T 27 28 May 2015 UN Ron T 26 27 May 2016 HUN Sethany 121 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 5

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 30 July 2017 ERN>01515994 002 19 09 2007 ECCC TC E459

application does not support this as she only describes the medical treatment and injections

which were given to her and others and expresses her uncertainty about what they were

122 receiving The Chamber finds that her in court statement in relation to the lack of medical

care received by those at the 1st January Dam worksite is likely to be substantially repetitive of the evidence heard in Case 002 02 from several witnesses and Civil Parties including YEAN Lon YEAN Lun 2 TCW 830 and OM Chy UM Chi 2 TCW 926 and Civil Parties CHAO Lang 2 TCCP 992 SEANG Sovida 2 TCCP 273 and HUN Sethany 2

123 TCCP 2 5 5 Therefore the Trial Chamber decides not to summons CHEA Marie 2 TCCP

294

6 7 2 Kampong Chhnang Airport

57 The Co Prosecutors proposed SUM Sokhân 2 TCW 911 as a reserve witness to testify about the working and living conditions authority structure and the death and

124 disappearance of workers at the Kampong Chhnang Airport site Having reviewed the

125 material on the Case File relevant to SUM Sokhân 2 TCW 911 and noting the matters on which he is proposed to testify the Chamber finds that his testimony in relation to the

Kampong Chhnang Airport site is likely to be substantially repetitive of the evidence heard on these matters in Case 002 02 from several witnesses including CHAN Mom 2 TCW 975

126 KEO Kin 2 TCW 910 KEO Loeur 2 TCW 932 and HIM Han 2 TCW 901 The

Chamber therefore decides not to summons this witness

6 7 3 Trapeang Thma Dam

58 The Lead Co Lawyers proposed Civil Parties ORM Mâk 2 TCCP 284 and THUN

Hâm 2 TCCP 279 to be heard on the treatment of prisoners and working conditions at the

127 Trapeang Thma Dam worksite According to the summary of his proposed evidence ORM

122 Supplementary Information of Civil Party CHEA Marie confidential E3 5085A 28 May 2014 123 See T 16 17 June 2015 YEAN Lon T 30 July 2015 OM Chy T 1 September 2015 CHAO Lang T 2 June 2015 SEANG Sovida T 26 27 May 2016 HUN Sethany 124 See Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] confidential E305 6 5 9 May 2014 p 11 125 See Written Record of Interview of SUM Sokhân E3 5274 13 February 2009 126 See T 9 10 June 2015 CHAN Mom T 10 11 June 2015 KEO Kin T 12 15 16 June 2015 KEO Loeur T 23 24 June 2015 HIM Han 127 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 21 22 35 36

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 31 July 2017 ERN>01515995 002 19 09 2007 ECCC TC E459

128 Mâk 2 TCCP 284 could also speak to the persecution of former Khmer Republic soldiers

Having reviewed the material on the Case File relevant to these individuals129 and noting the

matters on which they are proposed to be heard the Chamber finds that their in court

statements on the treatment of prisoners and working conditions at the Trapeang Thma Dam

worksite are likely to be substantially repetitive of the evidence heard on these matters in Case 002 02 from several witnesses and Civil Parties including YI Laisov 2 TCW 841 CHHUY Huy 2 TCW 915 SEN Sophon 2 TCCP 220 KAN Thol 2 TCW 881 CHHUM Seng

130 2 TCW 828 and PAN Chhuong 2 TCW 918 In addition the Chamber finds that ORM

Mâk 2 TCCP 284 ’s evidence on the targeting of former Khmer Republic soldiers is likely to

be substantially repetitive of the evidence heard on these matters in Case 002 02 from several witnesses including SEN Sophon 2 TCCP 220 KAN Thol 2 TCW 881 and CHHUM

131 Seng 2 TCW 828 The Chamber therefore decides not to summons these Civil Parties

6 8 General witnesses

59 The KHIEU Samphan and NUON Chea Defence proposed several witnesses to testify

132 generally on cooperatives and worksites among other subjects However the proposed

subject matter of the testimony of many of these witnesses is more closely related to other

trial topics Therefore the Chamber’s analysis on whether to call these witnesses is addressed

in other sections of this decision CHHANG Youk 2 TCW 870 is addressed in the Tram

~~~ Cooperatives and Kraing ~~ Chan Security Centre section POL Saroeun 2 TCW 962 HENG Samrin 2 TCW 831 will be addressed in the Security Centres and Internal Purges section Philip SHORT 2 TCE 92 Laura SUMMERS 2 TCE 100 Ewa TABEAU 2

TCE 93 and Roel BURGLER 2 TCE 96 will be addressed in the section on proposed

experts

128 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 21 22 129 See Civil Party Application of ORM Mâk confidential E3 6589 16 August 2009 Supplementary Information of Civil Party Applicant ORM Mâk E3 6589a 12 June 2010 Civil Party Application of THUN Hâm E3 6630 6 July 2009 130 See T 20 August 2015 YI Laisov T 24 August 2015 CHHUY Huy T 27 28 July 2015 SEN Sophon T 10 11 August 2015 KAN Thol T 17 19 August 2015 CHHUM Seng T 30 November 2015 1 2 December 2015 PAN Chhuong 131 See T 27 28 July 2015 SEN Sophon T 11 August 2015 KAN Thol T 17 19 August 2015 CHHUM Seng 132 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 1 6 12 20 22 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 pp 2 4

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 32 July 2017 ERN>01515996 002 19 09 2007 ECCC TC E459

60 In addition the Chamber notes that CHEA Sim 2 TCW 878 who was proposed by the

133 NUON Chea Defence is deceased and thus could not be considered The Trial Chamber

has already rejected the requests to call Stephen HEDER 2 TCE 87 and François

134 PONCHAUD 2 TCE 99 and confirmed that Michael VICKERY 2 TCE 94 would not

135 testify as an expert in this case

7 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR

THE TREATMENT OF TARGETED GROUPS TRIAL TOPIC

61 The Trial Chamber notes that the Treatment of Buddhists was limited to Tram ~~~

Cooperatives in Case 002 02 and is therefore dealt with in the section on the Tram ~~~

136 Cooperatives

7 1 The Treatment of the Vietnamese

62 The Co Prosecutors and Lead Co Lawyers proposed that the Chamber hear the

following witnesses Civil Parties and experts on the Treatment of the Vietnamese

a The Co Prosecutors

1 HINTON Alexander Laban 2 TCE 88 2 KHUN Mon 2 TCW 958 3 LACH Kri 2 TCCP 844 4 CHHUON Ri 2 TCW 843 5 DIN Oeun 2 TCCP 869 6 LENG Samet alias Tech 2 TCW 957 7 LANG Hel 2 TCW 927 8 1ER Pov 2 TCW 874 9 UNG Ien 2 TCW 805 10 BOU Van 2 TCW 939 11 SIN Chhem 2 TCW 820 12 IN Yoeung 2 TCW 849 13 Y Vun 2 TCW 846 14 SEAN Sung 2 TCW 868

133 See NUON Chea’s Request to Reconsider Admitting One Extract and to Admit Two Additional Extracts from the Human Rights Watch Report ‘30 Years of HUN Sen’ 11 December 2015 E347 2 fn 46 referring to CPP President CHEA Sim Dead SAING Soenthrith The Cambodia Daily 8 June 2015 134 The Trial Chamber rejected the requests to call Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 See Decision on Reiterated Request of KHIEU Samphan Defence to Hear Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 E408 6 E408 6 2 3 November 2016 135 See Outstanding issues relating to Expert Michael VICKERY 2 TCE 94 E408 5 4 August 2016 see also below paras 187 194 136 See above paras 30 38

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 33 July 2017 ERN>01515997 002 19 09 2007 ECCC TC E459

15 PRAK Doeun 2 TCCP 300 16 PRUM Sarun 2 TCW 945 17 KHOUY Muoy alias KHAUNG Muoy 2 TCCP 259 18 CHUOP Kep 2 TCW 905 19 PEOU Sinuon POV Sinuon 2 TCCP 295 20 UK Soeum alias SAN Soeun 2 TCW 806 21 TABEAU Ewa Maria 2 TCE 93

22 SAO Sak 2 TCW 886 as reserve witness

23 KHUN Samit 2 TCW 857 as reserve witness

24 IENG On 2 TCW 935 as reserve witness 25 THENG Huy 2 TCW 848 as reserve witness 26 PRUM Yan 2 TCW 837 as reserve witness 137 27 UM Sun 2 TCW 949 as reserve witness

b The Lead Co Lawyers

1 CHOEUNG Yaing Chaet 2 TCCP 241 2 CHOU Koemlan 2 TCCP 238 3 NGUYEN Thi Tyet 2 TCCP 234 4 NGVIENG Yang Anh 2 TCCP 240 138 5 UN Sovannary 2 TCCP 231

c The NUON Chea Defence proposed the following witnesses and experts to provide

testimony on the Treatment of the Vietnamese among other subjects

1 CHHEM Neang 2 TCW 899 2 CHUUN Phal 2 TCW 872 3 HENG Samrin 2 TCW 831 4 KAING Guek Eav alias Duch 2 TCW 916 5 LACH Mean 2 TCW 898 6 MAM Nai alias Chan 2 TCW 864 7 NHEM En 2 TCW 919 8 NIM Kimsreang alias NIM Oem alias NIM Im 2 TCW 854 9 PEN Sovann 2 TCW 952 10 PESS Matt aka PES Math alias LY Try 2 TCW 824 11 SAOM Met 2 TCW 902 12 CHANDA Nayan 2 TCE 83 13 CHANDLER David Porter 2 TCE 84 14 ETCHESON Craig 2 TCE 85 15 MORRIS Stephen John 2 TCE 98 16 SUMMERS Laura 2 TCE 100 17 TABEAU Ewa Maria 2 TCE 93 18 Michael VICKERY 2 TCE 94 19 POL Saroeun 2 TCW 962

137 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 1 138 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 p 2

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139 20 Roel BURGLER 2 TCE 96

63 The KHIEU Samphan Defence did not propose any witness Civil Party or expert whose testimony would relate directly to the Treatment of the Vietnamese Instead the KHIEU

Samphan Defence proposed the following witness and experts to testify on numerous topics

including the treatment of specific groups without differentiating between the Treatment of

the Vietnamese the Treatment of the Cham or the Treatment of the former Khmer Republic officials Witness CHUON Thi 2 TCW 859 Expert Roel BURGLER 2 TCE 96 Expert Philip SHORT 2 TCE 92 Expert Michael VICKERY 2 TCE 94 Expert Stephen HEDER

140 2 TCE 87 and Expert François PONCHAUD 2 TCE 99

7 2 The Treatment of the Cham

64 The Co Prosecutors and Lead Co Lawyers proposed that the Chamber hear the

following witnesses Civil Parties and experts on the Treatment of the Cham

a The Co Prosecutors

1 SOS Ponyamin 2 TCCP 244 2 IT Sen 2 TCW 813 3 SENG Srun 2 TCW 880 4 SENG Khuy 2 TCW 832 5 HIM Man 2 TCCP 252 6 HOK Hoeun 2 TCW 955 7 SAMRIT Muy 2 TCW 883 8 MAN Heang 2 TCW 895 9 AHMAD Sofiyah 2 TCW 928 10 NO Satas 2 TCCP 270 11 SALES Ahmat 2 TCW 893 12 BAN Siek 2 TCW 950 13 NHEM Kol 2 TCW 884 14 YOU Vann 2 TCW 894 15 PHLONG Hân 2 TCCP 285 16 SUM Chan Thol 2 TCCP 272 17 PRAK Yut 2 TCW 938 18 YSA Osman 2 TCE 95

19 RES Tort 2 TCW 818 as reserve witness 20 SUF Romly 2 TCW 904 as reserve witness

139 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 4 5 7 8 10 11 13 14 17 23 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 pp 2 4 140 Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection confidential E305 5 2 9 May 2014 pp 1 6

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21 SOH Kamrei 2 TCW 827 as reserve witness

22 TAY Kimhuon 2 TCW 873 as reserve witness

23 KAE Noh 2 TCW 839 as reserve witness 24 CHEA Maly 2 TCW 947 as reserve witness 141 25 BLENGSLI Bjorn 2 TCE 91 as reserve expert

b The Lead Co Lawyers

1 KHUTH Voeurn 2 TCCP 260 2 LI Pat 2 TCCP 262 3 MAN Sles 2 TCCP 263 4 NO Sata Sates alias Tas 2 TCCP 270 5 SOS Min SOS Ponyamin 2 TCCP 244 142 6 TOLORS Kârsim 2 TCCP 226

c The NUON Chea Defence proposed the following witnesses and expert to provide

testimony on the Treatment of the Cham among other subjects

1 CHEA Sim 2 TCW 878 2 CHHEM Neang 2 TCW 899 3 HENG Samrin 2 TCW 831 4 TABEAU Ewa Maria 2 TCE 93 143 5 POL Saroeun 2 TCW 962

65 As noted above the KHIEU Samphan Defence proposed a witness and five experts to

testify on numerous topics including the treatment of specific groups without differentiating

between the Treatment of the Vietnamese the Treatment of the Cham or the Treatment of the

144 former Khmer Republic officials

7 3 The Treatment of Former Khmer Republic Officials

66 The Co Prosecutors the Lead Co Lawyers and the KHIEU Samphan Defence did not

propose any witness Civil Party or expert specifically on the Treatment of the former Khmer Republic officials

141 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 1 142 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 pp 2 3 143 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 1 2 4 6 21 22 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 p 2 144 Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection confidential E305 5 2 9 May 2014 pp 1 6

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67 The NUON Chea Defence proposed the following witnesses and experts to provide

testimony on the Treatment of the former Khmer Republic officials among other subjects

1 CHHEM Neang 2 TCW 899 2 HENG Samrin 2 TCW 831 3 HIM Huy 2 TCW 906 4 KAING Guek Eav alias Duch 2 TCW 916 5 MAM Nai alias Chan 2 TCW 864 6 PECH Chim alias TA Chim 2 TCW 809 7 CHANDLER David Porter 2 TCE 84 8 TABEAU Ewa Maria 2 TCE 93 and 145 9 POL Saroeun 2 TCW 962

7 4 Witnesses Civil Parties and Experts heard by the Chamber

7 4 1 The Treatment of the Vietnamese

68 The Trial Chamber selected and heard the following witnesses Civil Parties and experts

146 in relation to the Treatment of the Vietnamese Expert Alexander Laban HINTON 2 TCE 88 Civil Party LACH Kry 2 TCCP 844 Witness UNG Sam Ean 2 TCW 805 Witness SIN Chhem 2 TCW 820 Witness Y Vun 2 TCW 846 Witness SEAN Song alias Sung 2 TCW 868 Civil Party PRAK Doeun 2 TCCP 300 Witness PRUM Sarun 2 TCW 945

Witness SAO Sak 2 TCW 886 Witness THANG Phal 2 TCW 848 Witness UM Suonn

2 TCW 949 Civil Party CHOEUNG Yaing Chaet 2 TCCP 241 Witness PAK Sok 2

147 TCW 1000 Civil Party DOUNG Oeurn alias DAUNG Oeun 2 TCCP 869 Witness

148 PRUM Sarat 2 TCW 1009 Witness IN Yoeung 2 TCW 849 Witness SANN Lorn 2

149 150 TCW 1007 Witness MEAS Voeun alias SVAY Voeun 2 TCW 1008

145 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 4 7 10 12 18 21 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 p 2 146 The Chamber heard evidence on the factual allegations concerning crime sites located in Prey Veng and Svay Rieng Provinces and at Wat Khsach Yeang village Russei Lok district Siem Reap province It also heard evidence concerning various other locations with the purpose of assessing whether a nation wide policy targeting Vietnamese including the treatment of Vietnamese at sea existed 147 Witness PAK Sok 2 TCW 1000 was selected via oral ruling following an Internal Rule 87 4 request by the International Co Prosecutor See T 7 December 2015 See also Decision on International Co Prosecutor’s Request to Admit Written Records of Interview Pursuant to Rules 87 3 4 and to call Four Additional Witnesses for Upcoming Case 002 02 Segments confidential E319 36 2 25 May 2016 para 2 148 Witness PRUM Sarat 2 TCW 1009 was selected pursuant to Internal Rule 87 4 following a request by the NUON Chea Defence which was supported by the International Co Prosecutor See Decision on Motions to Hear Additional Witnesses on the Topic of the Treatment of Vietnamese with Reasons to Follow E380 E381 E382 E380 1 12 January 2016 Decision on Motions to Hear Additional Witnesses on the Topic of the

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69 The Chamber also heard the following Civil Parties on the harm they suffered in relation

to the Treatment of the Vietnamese during the Democratic Kampuchea era SIENG Chanthy

151 2 TCCP 1015 KHOUY Muoy alias KHAUNG Muoy 2 TCCP 259 and UCH Sunlay

152 2 TCCP 1014

70 In total the Trial Chamber heard 13 witnesses 7 Civil Parties and 1 expert during the

trial topic on the Treatment of the Vietnamese Civil Party CHOU Koemlan 2 TCCP 238

was instead heard during the trial topic on the Tram ~~~ Cooperatives and Kraing ~~ Chan

153 Security Centre

7 4 2 The Treatment of the Cham

71 The Trial Chamber selected and heard the following witnesses Civil Parties and experts in relation to the Treatment of the Cham Civil Party SOS Min SOS Ponyamin 2 TCCP

244 Witness IT Sen alias Sen 2 TCW 813 Witness SEN Srun 2 TCW 880 Witness

SENG Khuy 2 TCW 832 Civil Party HIM Man alias Man Cheang Machine alias A Man

Sal alias A Ch oeng Meas 2 TCCP 252 Witness SAMRIT Muy 2 TCW 883 Witness MATH Sor AHMAD Sofiyah alias Ahmat Safiyal alias Sofiyah 2 TCW 928 Civil Party

NO Sates NO Satas alias Tas 2 TCCP 270 Witness VAN Mat alias SALES Ahmat 2

TCW 893 Witness BAN Siek alias HANG Phos 2 TCW 950 Witness TAY Kimhuon

alias Kimhuon 2 TCW 873 Witness SOS Romly alias YUSUF Romly alias Ly 2 TCW

Treatment of Vietnamese and to Admit Related Written Records of Interview E380 E381 E382 Full Reasons E380 2 25 May 2016 149 Witness SANN Lorn 2 TCW 1007 was selected pursuant to Internal Rule 87 4 following a request by the NUON Chea Defence to hear this witness for the trial topic on Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre See Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram Kok Cooperatives and Kraing ~~ Chan Security Centre confidential E346 2 30 April 2015 Reasons Following Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram Kok Cooperatives and Kraing ~~ Chan Security Centre and Decision on SANN Lorn 2 TCW 1007 SOU Phirin 2 TCW 1027 confidential E346 3 31 March 2016 150 Witness MEAS Voeun alias SVAY Voeun 2 TCW 1008 was selected pursuant to Internal Rule 87 4 following a request by the NUON Chea Defence See Decision on Motions to Hear Additional Witnesses on the Topic of the Treatment of Vietnamese with Reasons to Follow E380 E381 E382 E380 1 12 January 2016 Decision on Motions to Hear Additional Witnesses on the Topic of the Treatment of Vietnamese and to Admit Related Written Records of Interview E380 E381 E382 Full Reasons E380 2 25 May 2016 151 Civil Party SIENG Chanthy 2 TCCP 1015 was proposed by the Lead Co Lawyers for the hearing on the Harm Suffered by the Civil Parties in relation to the Treatment of the Vietnamese See Lead Co Lawyers’ Submission on the List of Civil Parties to Testify During the Hearings on Harm Suffered Third Segment and Request Pursuant to Rule 87 4 E315 1 4 10 February 2016 with Confidential Annex A E315 1 4 1 p l 152 Civil Party UCH Sunlay 2 TCCP 1014 was proposed by the Lead Co Lawyers for the hearing on the Harm Suffered by the Civil Parties in relation to the Treatment of the Vietnamese See Lead Co Lawyers’ Submission on the List of Civil Parties to Testify During the Hearings on Harm Suffered Third Segment and Request Pursuant to Rule 87 4 E315 1 4 10 February 2016 with Confidential Annex A E315 1 4 1 p l 153 See above para 25 T 26 27 January 2015 CHOU Koemlan

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154 155 904 Witness MUY Vanny 2 TCW 987 Witness SAY Doeun 2 TCW 988 Witness

YOU Vann 2 TCW 894 Witness PRAK Yut 2 TCW 938 Witness SOH Kamrei 2 TCW

827 and Expert YSA Osman 2 TCE 95

72 The Chamber also heard the following Civil Parties on the harm they suffered in relation

to the Treatment of the Cham during the Democratic Kampuchea era MAN Sles 2 TCCP

156 263 and MEU Peou MOEU Pov 2 TCCP 1013

73 In total the Trial Chamber heard 14 witnesses 5 Civil Parties and 1 expert during the

trial topic on the Treatment of the Cham

7 4 3 The Treatment of Former Khmer Republic Officials

74 The Trial Chamber heard Witness SAO Van alias Port 2 TCW 989 proposed by the

157 NUON Chea Defence pursuant to Internal Rule 87 4 specifically on the trial topic on the Treatment of former Khmer Republic officials However the Chamber notes that it heard extensive evidence in relation to the Treatment of the former Khmer Republic officials during

other trial topics throughout Case 002 02 particularly during the trial topic on the Tram ~~~

158 Cooperatives and Kraing ~~ Chan Security Centre

154 The Chamber selected MUY Vanny 2 TCW 987 on its own motion See Email from the Trial Chamber Senior Legal Officer entitled ‘Further Scheduling Treatment of Targeted Groups’ E364 1 1 24 December 2015 Decision on the KHIEU Samphan Defence’s opposition to the appearance of 2 TCW 987 E364 E364 1 18 February 2016 155 Witness SAY Doeun 2 TCW 988 was selected pursuant to Internal Rule 87 4 following a request by the International Co Prosecutor See Decision on International Co Prosecutor’s Request to Call Additional Witnesses During the Case 002 02 Trial Segment on Treatment of the Cham confidential E366 3 24 December 2015 156 Civil Party MEU Peou MOEU Pov 2 TCCP 1013 was proposed by the Lead Co Lawyers for the Hearing on the Harm Suffered by the Civil Parties in relation to the Treatment of the Cham See Lead Co Lawyers’ Submission on the List of Civil Parties to Testify During the Hearings on Harm Suffered Third Segment and Request Pursuant to Rule 87 4 E315 1 4 10 February 2016 with Confidential Annex A E315 1 4 1 p 1 157 NUON Chea’s Consolidated Rule 87 4 Request to Hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram Kok Cooperatives and Kraing ~~ Chan Security Centre confidential E346 3 April 2015 paras 7 8 29 Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to Hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram Kok Cooperatives and Kraing ~~ Chan Security Centre confidential E346 2 30 April 2015 Reasons Following Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to Hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram Kok Cooperatives and Kraing ~~ Chan Security Centre and Decision on SANN Lorn 2 TCW 1007 SOU Phirin 2 TCW 1027 and IV Sarik 2 TCW 1026 E346 2 E346 3 31 March 2016 158 See e g CHOU Koemlan 2 TCCP 238 SREI Than alias DUCH 2 TCW 944 EM Phoeung 2 TCW 954 KEO Chandara KEV Chandara alias KROU alias Yav 2 TCW 964 SAO Han 2 TCW 807 NUT Nov 2 TCW 948 OEM Saroeum OUNG SA Reoung 2 TCCP 980 PHANN Chhen 2 TCW 852 RIEL Son 2 TCW 860 THANN Thim 2 TCCP 288 KHOEM Boeun alias Yeay Boeun 2 TCW 979 PECH Chim alias TA Chim 2 TCW 809

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7 5 Deceased

75 The following witnesses could not be considered as they are deceased

159 1 KHUN Mon 2 TCW 958 160 2 LANG Hel 2 TCW 927 i6i 3 1ER Pov 2 TCW 874 162 4 HOK Hoeun 2 TCW 955 163 5 CHEA Sim 2 TCW 878

The requests to summons them are therefore moot

7 6 Repetitive and or Irrelevant and or Less Relevant

7 6 1 Individuals proposed by the Co Prosecutors on the Treatment of the

Vietnamese

76 The Co Prosecutors proposed Witness CHHUON Ri 2 TCW 843 Witness LENG

Samet alias Tech 2 TCW 957 Witness BOU Van 2 TCW 939 as well as reserve

witnesses KHUN Samit 2 TCW 857 IENG On 2 TCW 935 and PRUM Yan 2 TCW

837 to testify on the treatment of the Vietnamese in relation to Prey Veng and Svay Rieng

164 Provinces These witnesses were requested to testify primarily on the killing arrest and disappearances of Vietnamese members of ethnically mixed families noting in particular that

165 Vietnamese wives and children would be taken away to be executed Having reviewed the

material on the Case File relevant to these six proposed witnesses and noting the matters on

166 which they are proposed to testily the Chamber finds that their testimonies on the

159 Letter of Confirmation of Death KHUN Mon confidential 2 TCW 958 E29 506 25 September 2015 160 Death Certificate LANG Hel confidential 2 TCW 927 E29 507 23 January 2015 161 Letter of confirmation of Death IER Pov confidential 2 TCW 874 E29 505 12 January 2017 162 Witness Expert Support Unit Report Reported deceased of HOK Hoeun confidential 2 TCW 955 E29 473 8 September 2015 163 See NUON Chea’s Request to Reconsider Admitting One Extract and to Admit Two Additional Extracts from the Human Rights Watch Report ‘30 Years of HUN Sen’ 11 December 2015 E347 2 fn 46 referring to SAING Soenthrith “CPP President CHEA Sim Dead” The Cambodia Daily 8 June 2015 164 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 18 21 Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 pp 5 6 See also Co Prosecutors’ Request to Summon 2 TCW 843 2 TCW 957 2 TCW 245 2 TCW 939 2 TCW 849 and 2 TCW 905 in Relation to the Vietnamese Segment of Case 002 02 confidential E381 23 December 2015 The Chamber notes that the Co Prosecutors later withdrew 2 TCW 245 as a proposed witness 165 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 18 19 21 Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 pp 5 7 166 See Written Record of Interview of Chhuon Ri E3 7891 3 December 2009 Written Record of Interview of Leng Samet E3 7810 14 January 2009 DC Cam Statement of Leng Samet E3 7594 24 February 2000 DC Cam Statement of Bou Van E3 7498 29 August 2005 DC Cam Statement of KHUN Samit E3 7586 9 March

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treatment of the Vietnamese are likely to be substantially repetitive of evidence heard on these

167 matters in Case 002 02 from several witnesses including Witness SAO Sak 2 TCW 886

168 169 Witness SIN Chhem 2 TCW 820 Civil Party LACH Kry 2 TCCP 844 Witness

170 171 THANG Phal 2 TCW 848 Witness UNG Sam Ean 2 TCW 805 The Chamber

therefore declines to summons them

77 The Co Prosecutors also propose Witness CHUOP Kep 2 TCW 905 Witness UK Soeum alias SAN Soeun 2 TCW 806 and Civil Party PEOU Sinuon 2 TCCP 295 for the

172 trial topic on the Treatment of the Vietnamese The Chamber notes that Witness CHUOP Kep 2 TCW 905 ’s proposed testimony relates to the Khmer Rouge search for ethnic

173 Vietnamese and the killing of Vietnamese families Having reviewed the material on the

174 Case File relevant to this witness and noting the matters on which he is proposed to testify

the Chamber finds that his testimony on the treatment of Vietnamese is likely to be substantially repetitive of evidence heard in Case 002 02 through from several witnesses and

175 Civil Parties including Witness SAO Sak 2 TCW 886 Witness THANG Phal 2 TCW

176 177 848 Witness SANN Lom 2 TCW 1007 Civil Party CHHOEUNG Yaing Chaet 2

178 179 TCCP 241 Civil Party SIENG Chanthy 2 TCCP 1015 and Civil Party CHOU

180 Koemlan 2 TCCP 2 3 8 The Chamber therefore declines to summons him

78 As regards Witness UK Soeum alias SAN Soeun 2 TCW 806 and Civil Party PEOU

181 Sinuon 2 TCCP 295 the Chamber notes that their evidence on persecution relates to the

2000 Written Record of Interview of IENG On E3 9352 16 September 2008 Written Record of Interview of PRUM Yan E3 7816 29 January 2009 167 See T 3 December 2015 SAO Sak T 7 December 2015 SAO Sak 168 See T 14 December 2015 SIN Chhem 169 See T 20 January 2016 LACH Kry 170 See T 5 January 2016 THANG Phal 171 See T 11 December 2015 UNG Sam Ean 172 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 19 23 40 173 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 p 19 174 See Complaint of Chuop Kep confidential E3 7019a 23 May 2008 175 See T 3 December 2015 SAO Sak T 7 December 2015 SAO Sak 176 See T 06 January 2016 THENG Huy 177 See T 28 January 2016 SANN Lorn 178 See T 7 December 2015 CHHOEUNG Yaing Chaet T 8 December 2015 CHHOEUNG Yaing Chaet 179 See T 29 February 2016 SIENG Chanthy T 01 March 2016 SIENG Chanthy 180 See T 26 January 2015 CHOU Koemlan 181 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 23 40

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182 arrest and execution of Khmer Krom rather than Vietnamese The Chamber recalls that

evidence relating to the Khmer Krom may be relevant to the charges in Case 002 02 only

insofar as it is not exclusively related to the persecution of the Khmer Krom as a distinct

183 group The Chamber therefore considers the evidence of UK Soeum alias SAN Soeun 2

TCW 806 and PEOU Sinuon 2 TCCP 295 to be irrelevant for the trial topic on the

Treatment of Vietnamese and declines to summons them

79 Finally the Chamber recalls that the Co Prosecutors indicated that it was no longer

necessary to hear Ewa Maria TABEAU 2 TCE 93 and the Trial Chamber decided not to

184 summons her in Case 002 02

7 6 2 Individuals proposed by the Lead Co Lawyers on the Treatment of the

Vietnamese

80 The Lead Co Lawyers proposed Civil Parties NGUYEN Thi Tyet 2 TCCP 234 NGVIENG Yang Anh 2 TCCP 240 and UN Sovannary 2 TCCP 231 to provide oral

evidence on both a national policy of targeting the Vietnamese as a group and their forced

185 deportation to Vietnam The Chamber recalls that although it initially selected NGUYEN

Thi Tyet 2 TCCP 234 to be heard during this trial topic it eventually decided to no longer

186 seek to hear her as it was not possible to obtain her testimony within a reasonable time Having reviewed the material relevant to the other two proposed Civil Parties and noting the

187 matters on which they are proposed to testily the Chamber finds that while the Lead Co

Lawyers claim that UN Sovannary 2 TCCP 231 a member of the Khmer Krom community

was a “direct victim” of the persecution of Vietnamese his proposed evidence relates to the

182 Written Record of Interview of UK Soeum confidential E3 5603 3 March 2010 Written Record of Interview of Civil Party POV Sinuon confidential E3 5545 29 September 2009 183 Decision on International Co Prosecutor’s Requests to Admit Written Records of Interview Pursuant to Rules 87 3 and 87 4 E319 47 3 29 June 2016 para 25 citing T 25 May 2015 pp 60 62 see also Decision on Two Requests by the International Co Prosecutor to Admit Documents Pursuant to Rule 87 3 and 87 4 E319 51 and E319 52 confidential E319 52 4 23 November 2016 para 18 184 T 1 September 2016 Email from Legal Officer 13 September 2016 The NUON Chea Defence submitted that Ewa Maria TABEAU 2 TCE 93 should no longer be called but that the Chamber should instead summons Patrick HEUVELINE see T 1 September 2016 Decision on NUON Chea’s Request to Summons Patrick Heuveline and to Admit two related documents E444 1 6 December 2016 The full reasons for not calling Ewa Maria TABEAU 2 TCE 93 are addressed in the section on Experts 185 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 19 20 38 39 186 See Decision on 2 TCW 876 and 2 TCCP 234 E403 2 May 2016 187 See Civil Party Application of NGVIENG Yang Anh confidential E3 6696 15 October 2009 Supplementary Statement of NGVIENG Yang Anh confidential E3 5633 22 December 2010 Written Record of Interview of Civil Party UN Sovannary confidential E3 9798 31 October 2013 Civil Party Application of UN Sovannary confidential E3 4728 29 July 2009

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 42 July 2017 ERN>01516006 002 19 09 2007 ECCC TC E459

188 persecution of the Khmer Krom As noted above evidence relating specifically to the

persecution of the Khmer Krom as a distinct group is considered irrelevant to the charges in

189 Case 002 02 The Chamber therefore finds the proposed testimony of UN Sovannary 2

TCCP 231 to be irrelevant for the trial topic on the Treatment of the Vietnamese While NGVIENG Yang Anh 2 TCCP 240 ’s proposed testimony of personal persecution forced

deportation and other ill treatment as an ethnic Vietnamese is relevant to this trial topic the Chamber finds that it is likely to be substantially repetitive of evidence heard from several

190 191 witnesses including Civil Party CHHOEUNG Yaing Chaet 2 TCCP 241 and Civil

192 Party CHOU Koemlan 2 TCCP 238 who testified during the trial topic on Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre The Chamber therefore declines to

summons them

7 6 3 Individuals proposed by the Co Prosecutors on the Treatment of the Cham

193 81 According to the summary of proposed evidence Witness MAN Heang 2 TCW 895

worked in a mobile unit in Kang Meas District and witnessed the arrest of several Cham

194 Having reviewed the material on the Case File relevant to this witness and noting the

matters on which he is proposed to testily the Chamber finds that his testimony is likely to be

substantially repetitive of the evidence heard on these matters in Case 002 02 from other witnesses and Civil Parties including Civil Party HIM Man alias Man Cheang Machine alias

195 ~ Man Sal alias A Ch oeng Meas 2 TCCP 252 and Witness SENG Khuy 2 TCW

196 8 32 The Chamber therefore declines to summons him

188 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 38 39 See also Civil Party Application of UN Sovannary confidential E3 4728 29 July 2009 189 Decision on International Co Prosecutor’s Requests to Admit Written Records of Interview Pursuant to Rules 87 3 and 87 4 E319 47 3 29 June 2016 para 25 citing T 25 May 2015 pp 60 62 see also Decision on Two Requests by the International Co Prosecutor to Admit Documents Pursuant to Rule 87 3 and 87 4 E319 51 and E319 52 confidential E319 52 4 23 November 2016 para 18 190 See above paras 76 78 191 See T 7 December 2015 CHHOEUNG Yaing Chaet T 8 December 2015 CHHOEUNG Yaing Chaet 192 See T 26 January 2015 CHOU Koemlan 193 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 25 26 194 See Written Record of Interview of MAN Heang E3 5529 10 December 2009 195 See T 17 September 2015 T 28 September 2015 196 See T 9 September 2015 T 10 September 2015

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 43 July 2017 ERN>01516007 002 19 09 2007 ECCC TC E459

82 According to the summary of proposed evidence Witness NHEM Kol alias Say 2

197 TCW 884 worked for the Krala commune chief in Kampong Siem District and witnessed the elimination of the Cham population in that district He is also deemed relevant because he

198 could describe that lists of Cham were compiled in his district Although this witness’s

proposed evidence is relevant to this trial topic amongst other topics the Chamber finds that his testimony in relation to the treatment of the Cham is likely to be substantially repetitive of

and less relevant than other evidence on the Case File on the same issues including the

199 testimony of Witness PRAK Yut 2 TCW 938 The Chamber therefore declines to

summons him

83 The Co Prosecutors further proposed Civil Parties PHLONG Hân 2 TCCP 285 and

200 SUM Chan Thol 2 TCCP 272 as relevant for the removal of Cham in the Central Zone

Insofar as the evidence proposed by these two Civil Parties is related to the treatment of the

Cham the Chamber finds that their in court statements are likely to be substantially repetitive of the evidence heard from several witnesses and Civil Parties including Witness IT Sen alias

201 202 Sen 2 TCW 813 Witness SENG Khuy 2 TCW 832 Witness VAN Mat alias SALES

203 204 Ahmat 2 TCW 8 9 3 Witness SEN Srun 2 TCW 8 80 Civil Party HIM Man alias Man

205 Cheang Machine alias ~ Man Sal alias A Ch oeng Meas 2 TCCP 252 Witness BAN

206 Seak alias HANG Phos 2 TCW 95 0 and Civil Party SOS Min SOS Ponyamin 2

207 TCCP 244 The Chamber therefore declines to summons them

84 The Co Prosecutors also proposed Witness RES Tort 2 TCW 818 Witness KAE Noh

2 TCW 839 and Witness CHEA Maly 2 TCW 947 as reserve witnesses to testify on the

treatment of the Cham notably on prohibiting their religious practices and on the arrest

208 detention and killing of the Cham According to the Co Prosecutors RES Tort 2 TCW

197 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 p 26 198 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 p 26 199 See T 19 January 2016 PRAK Yut 200 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 25 26 41 42 201 See T 7 September 2015 IT Sen T 8 September 2015 IT Sen 202 See T 9 September 2015 SENG Khuy T 10 September 2015 SENG Khuy 203 See T 9 March 2016 VAN Mat alias SALES Ahmat 204 See T 14 September 2015 SEN Srun 205 See T 17 September 2015 HIM Man T 28 September 2015 HIM Man 206 See T 5 October 2015 BAN Seak 207 See T 8 September 2015 SOS Min 208 Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 p 7

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818 and ~~~ Noh 2 TCW 839 were both from Koh Phal village and CHEA Maly 2

209 TCW 947 was a monk at Wat Au Trakuon who was disrobed Although relevant to the

trial topic on the Treatment of the Cham the Chamber finds that their testimonies are likely to be substantially repetitive of the evidence of other witnesses heard in Case 002 02 including

210 Witness TAY Koemhun alias Kimhuon 2 TCW 873 who also provides evidence on the

Wat Au Trakuon Security Center Civil Party HUN Sethany 2 TCCP 255 who testified on

211 persecution practices such as disrobing monks Witness MEAS Laihour MEAS Laihuo

212 213 2 TCW 851 Witness SOS Romly alias YUSUF Romly alias Ly 2 TCW 904 and

214 Witness SOH Kamrei 2 TCW 827 The Chamber therefore declines to summons them

85 As for proposed reserve Expert BLENGSLI Bjorn 2 TCE 91 having selected and

heard Expert YSA Osman 2 TCE 95 on amongst other matters the characteristics of the

Cham as a group the DK policies against the Cham the Cham rebellions and the number of

215 Cham killed during the DK period the Chamber finds it would be substantially repetitive to

hear a second expert on the same topics The Chamber therefore declines to summons him

7 6 4 Individuals proposed by the Lead Co Lawyers on the Treatment of the Cham

86 The Lead Co Lawyers proposed Civil Parties KHUTH Voeurn 2 TCCP 260 LI Pat 2

TCCP 262 and TOLORS Karsim 2 TCCP 226 to provide oral evidence on a national

216 policy of targeting the Cham as a group As ethnic Cham all three Civil Parties would testify about being direct victims of the persecution ill treatment and elimination of the

Cham LI Pat 2 TCCP 262 would additionally provide evidence on the Cham rebellion

217 against the Khmer Rouge in Svay Kleang and its aftermath Having reviewed the material

on the Case File relevant to these Civil Parties218 and noting the matters on which they are

209 Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 p 7 See also WRI of RES Tort E3 7766 19 May 2009 WRI of KAE Noh’E3 5289 20 May 2009 Interview of Witness Chea Maly E3 7827 6 August 2008 210 See T 16 September 2015 TAY Kimhuon 211 See T 27 May 2015 HUN Sethany 212 See T 25 May 2015 MEAS Mayhuor T 27 May 2015 MEAS Mayhuor 213 See T 6 January 2016 SOS Romly T 8 January 2016 SOS Romly 214 See T 6 April 2016 SOH Kamrei 215 See T 9 February 2016 YSA Osman T 24 March 2016 YSA Osman 216 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 14 15 36 217 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 14 15 36 218 See Civil Party Application of KHUTH Voeum E3 5078 18 December 2009 confidential Civil Party Application of LI Pat E3 6719 22 October 2009 Civil Party Application of TOLORS Karsim E3 4776 25 October 2007

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 45 July 2017 ERN>01516009 002 19 09 2007 ECCC TC E459

proposed to testify the Chamber finds that their in court statements on the treatment of the

Cham are likely to be substantially repetitive of the evidence heard on these matters in Case 002 02 from several witnesses including Civil Party NO Sates NO Satas alias Tas 2

219 220 TCCP 270 Civil Party SOS Min SOS Ponyamin 2 TCCP 244 and Civil Party MAN

221 Sles 2 TCCP 263 who was heard during hearing on the harm suffered by the Civil Parties The Chamber also notes that it heard evidence in relation to the rebellion in Svay Kleang from other witnesses and Civil Parties including SOS Min SOS Ponyamin 2

222 TCCP 244 The Chamber therefore declines to summons them

7 7 General witnesses

223 87 As noted above the KHIEU Samphan Defence proposed one witness and five experts

to testily on numerous topics including the treatment of specific groups without differentiating between the Treatment of the Vietnamese and the Treatment of the Cham The Chamber notes that the proposed Witness CHUON Thy CHUON Thi alias THI Ov 2

TCW 859 was heard during the trial topic on the Nature of the Armed Conflict Meanwhile

the Chamber’s analysis on the experts proposed by the KHIEU Samphan Defence is

224 addressed in other sections of this decision

88 The NUON Chea Defence proposed several witnesses and experts to provide testimony

on the Treatment of the Vietnamese the Treatment of the Cham and the Treatment of the

former Khmer Republic officials among other subjects However having reviewed the

material on the Case File relevant to these witnesses the Chamber finds that the subject

matter of these witnesses’ testimony is more closely related to other trial topics For instance

proposed Expert Stephen John MORRIS 2 TCE 98 testified during the trial topic on Armed Conflict proposed Witness PECH Chim alias TA Chim 2 TCW 809 testified during the

trial topic on Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre Witnesses

KAING Guek Eav alias Duch 2 TCW 916 LACH Mean 2 TCW 898 NHEM En 2

TCW 919 and NIM Kimsreang alias NOEM Oem alias NIM Im 2 TCW 854 testified

during the trial topic on S 21 while Witness MAM Nai alias Chan 2 TCW 864 could not be

219 See T 29 September 2015 NO Sates 220 See T 8 September 2015 SOS Min T 9 September 2015 SOS Min 221 See T 29 February 2016 MAN Sles 222 See T 8 September 2015 SOS Min T 9 September 2015 SOS Min 223 See above para 63 224 Experts Roel BURGLER 2 TCE 96 and Philip SHORT 2 TCE 92 are addressed in the section on Experts See below paras 193 194

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 46 July 2017 ERN>01516010 002 19 09 2007 ECCC TC E459

225 summonsed as he is deceased Therefore the Chamber’s analysis on whether to call the

witnesses and experts proposed by the NUON Chea Defence is addressed in other sections of

226 this decision

89 The Chamber recalls that it has already rejected the requests to call Stephen HEDER 2

227 TCE 87 and François PONCHAUD 2 TCE 99 and confirmed that Michael VICKERY

228 2 TCE 94 would not testily as an expert in this case

8 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR

THE SECURITY CENTRES AND INTERNAL PURGES TRIAL TOPIC

90 The following witnesses Civil Parties and experts were proposed by the Parties in their Revised Lists in relation to the Security Centres and Internal Purges trial topic

8 1 Au Kanseng Security Centre

a The Co Prosecutors

1 CHHAOM Se 2 TCW 840 2 CHIN Kimthong 2 TCW 900 3 PHAN Thol 2 TCW 933 4 MAO Phat 2 TCW 825 5 MOEUNG Chandy 2 TCW 867 6 KHOEM Peou reserve witness 2 TCW 835 229 7 UM Keo reserve witness 2 TCW 892

b The Lead Co Lawyers

1 NAI Seak 2 TCCP 266 2 ROCHAM Blek 2 TCCP 302 230 3 SEV Liem 2 TCCP 221

225 See paras 25 97 103 167 226 Witnesses CHHEM Neang 2 TCW 899 CHUUN Phal aka CHHUN Phal 2 TCW 872 PESS Matt aka PES Math alias LY Try 2 TCW 824 SAOM Met 2 TCW 902 and Expert David Porter CHANDLER 2 TCE 84 are addressed in the section on the S 21 Security Centre Witnesses HENG Samrin 2 TCW 831 PEN Sovann aka PEN Sovan 2 TCW 952 POL Saroeun 2 TCW 962 and Expert Laura SUMMERS 2 TCE 100 are addressed in the section on Internal Purges Expert Nayan CHANDA 2 TCE 83 is addressed in the section on Armed Conflict Meanwhile Experts Craig ETCHESON 2 TCE 85 and Roel A BURGLER 2 TCE 96 are addressed in the section on Experts 227 The Trial Chamber rejected the requests to call Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 See Decision on Reiterated Request of KHIEU Samphan Defence to Hear Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 E408 6 E408 6 2 3 November 2016 228 See Outstanding issues relating to Expert Michael VICKERY 2 TCE 94 E408 5 4 August 2016 229 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014

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8 2 Phnom Kraol Security Centre

Co Prosecutors

1 BUN Loeng Chauy 2 TCW 838 2 NET Savat 2 TCW 817 3 CHAN Tauch 2 TCW 921 4 SAN Lan 2 TCW 853 5 SOK Ei 2 TCCP 222 231 6 AUM Mol 2 TCW 863

8 3 S 21 Security Centre

a The Co Prosecutors

1 KAING Guek Eav alias Duch 2 TCW 916 2 SUOS Thy 2 TCW 816 3 PRAK Khan 2 TCW 931 4 CHUM Mey 2 TCCP 243 5 HIM Huy 2 TCW 906 6 TAY Teng 2 TCW 865 7 LACH Mean reserve witness 2 TCW 898

8 SAOM Met reserve witness 2 TCW 902

9 MAKK Sithim reserve witness 2 TCW 808 232 10 NHEP Hau reserve witness 2 TCW 811

b The Lead Co Lawyers

1 CHIN Met 2 TCCP 242 2 CHUM Mey 2 TCCP 243 3 NAM Mon 2 TCCP 267 233 4 PHOAK Khan 2 TCCP 291

c The NUON Chea Defence

1 CHEAM Sour 2 TCW 826 2 CHEY Sopheara 2 TCW 814 3 CHHANG Youk 2 TCW 870 4 CHHEM Neang 2 TCW 899 5 CHUUN Phal 2 TCW 872 6 HEYNOWSKI Walter 2 TCW 946

230 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 231 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 232 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 233 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014

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7 HIM Huy 2 TCW 906 8 KAING Guek Eav alias Duch 2 TCW 916 9 KHIEU Ches 2 TCW 907 10 KOK Sros 2 TCW 941 11 LACH Mean 2 TCW 898 12 LY Hor 2 TCW 956 13 MAM Nai 2 TCW 864 14 NHEM EN 2 TCW 919 15 NIM Kimsreang 2 TCW 854 16 PES Math aka PESS Matt alias LY Try 2 TCW 824 17 SAOM Met 2 TCW 902 18 CHIN Met 2 TCCP 242 234 19 CHUM Neou 2 TCCP 246 235 20 YIN Nean 2 TCW 963

8 4 Internal Purges

a The Co Prosecutors

1 MEAS Soeun 2 TCW 917 2 TEP Poch 2 TCW 850 3 TOAT Thoeun 2 TCW 829 4 NHOEK LY 2 TCW 920 5 HEM Moeun 2 TCW 976 6 THUCH Sithan 2 TCW 842 7 KAO Son 2 TCW 940 236 8 LOCARD Henri 2 TCE 90

b The Lead Co Lawyers

1 CHHUN Samân 2 TCCP 236 2 HEL Oun 2 TCCP 249 3 LOEM LIM Korn 2 TCCP 277 4 PIN Phorn 2 TCCP 299 237 5 YUN Bin 2 TCCP 233

c NUON Chea Defence

1 CHEA Sim 2 TCW 878 2 CHEA Choeum 2 TCW 812

234 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 235 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 236 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 Witness TOAT Thoeun 2 TCW 829 is referred to as OCP 01 in the Revised List 237 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014

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3 HENG Samrin 2 TCW 831 4 LEMKIN Robert 2 TCW 877 5 MEAS Muth 2 TCW 903 6 THIOETNN Murnm 2 TCW 890 7 OUK Bunchhoeun 2 TCW 951 8 PEN Sovan 2 TCW 952 238 9 THETH Sambath 2 TCW 885 10 CHAN Savuth 2 TCW 959 11 CHIEL Chhoeun 2 TCW 960 12 IN Thoeun 2 TCW 961 239 13 POL Saroeun 2 TCW 962

91 The NUON Chea Defence also proposed Michael VICKERY 2 TCE 94 David

CHANDLER 2 TCE 84 and Laura J SUMMERS 2 TCE 100 to testify on the internal

factions internal purges and the nature of the armed conflict David CHANDLER 2 TCE 84

240 is also proposed for S 21 Security Centre

92 The KHIEU Samphan Defence did not propose any witness Civil Party or expert whose testimony would relate directly to the Security Centres and Internal Purges trial topic The

KHIEU Samphan Defence proposed experts Philip SHORT 2 TCE 92 Michael VICKERY

2 TCE 94 and Stephen HEDER 2 TCE 87 to provide testimony on security centres and

241 execution sites generally among other subjects

8 5 Witnesses Civil Parties and Experts heard by the Chamber

8 5 1 Au Kanseng Security Centre

93 The Trial Chamber selected and heard the following witnesses in relation to the Au Kanseng Security Centre Witness PHON Thol 2 TCW 933 Witness MOEURNG Chandy 2 TCW 867 and Witness CHIN Kimthong alias Chhang 2 TCW 900

94 In total the Trial Chamber heard 3 witnesses during the Au Kanseng Security Centre trial topic

238 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 239 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 240 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 241 Ordonnance aux fins du dépôt de pièces actualisées dans le cadre de la préparation du procès 002 02 E305 5 2 confidential 9 May 2014 pp 3 5

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8 5 2 Phnom Kraol Security Centre

95 The Trial Chamber selected and heard the following witnesses and Civil Parties in relation to the Phnom Kraol Security Centre Witness CHAN Toi alias CHAN Tauy 2 TCW 921 Witness NETH Savat alias NET Tha 2 TCW 817 Witness BUN Loeng Chauy

242 CHAN Bunleath 2 TCW 838 Witness PHAN Van alias KHAM Phan 2 TCW 1011

243 244 Witness SAO Sarun 2 TCW 1012 and Civil Party SUN Vuth 2 TCCP 1016

96 In total the Trial Chamber heard 5 witnesses and 1 Civil Party during the Phnom Kraol Security Centre trial topic

8 5 3 S 21 Security Centre

97 The Trial Chamber selected and heard the following witnesses Civil Parties and expert in relation to the S 21 Security Centre Civil Party CHUM Mey alias Mei 2 TCCP 243 Witness NHEM En 2 TCW 919 Witness TAY Teng 2 TCW 865 Witness LACH Mean

2 TCW 898 Witness PRAK Khorn PRAK Khan 2 TCW 931 Witness MAK Thim

MARK Sithim 2 TCW 808 Witness HIM Huy 2 TCW 906 Witness SUOS Thy 2

TCW 816 Witness KAING Guek Eav alias Duch 2 TCW 916 Witness NOEM Oem

245 NIM Kimsreang NIM Im 2 TCW 854 Witness HIN Sotheany 2 TCW 1042 and

246 expert VOEUN Vuthy 2 TCE 1062

98 The Chamber also heard the following Civil Parties on the harm they suffered during the

Democratic Kampuchea era in relation to S 21 Security Centre CHHAE Heap CHE Heap

247 248 2 TCCP 275 PHOUNG Yat 2 TCCP 1047 ROS CHUOR Siy 2 TCCP 1049

249 250 CHAU Kim CHAU Khim 2 TCCP 105 0 and KAU Sunthara 2 TCCP 1051

242 Witness PHAN Van alias KHAM Phan 2 TCW 1011 who already testified in Case 002 01 TCW 307 was selected proprio motu by the Trial Chamber see Email from the Senior Legal Officer of 5 February 2016 243 Witness SAO Sarun 2 TCW 1012 who already testified in Case 002 01 TCW 604 was selected proprio motu by the Trial Chamber see Email from the Senior Legal Officer of 5 February 2016 confidential 244 Decision on Co Prosecutors’ Rule 87 4 Request to Call an Additional Witness and an Additional Civil Party During the Phnom Kraol Security Centre Trial Segment E390 3 11 July 2016 Co Prosecutors’ Request to Call Additional Witnesses during the Phnom Kraol Security Centre Trial Segment E390 16 March 2016 245 Decision on NUON Chea Defence Requests to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 Email from the Senior Legal Officer 8 December 2016 246 Decision on the Admission into Evidence of the Choeung Ek Study Documents confidential E404 4 23 May 2016 para 7 Decision on the Designation of 2 TCE 1062 E404 8 4 November 2016 247 Confidential Annex A Provisional and Proposed Schedule for Hearing on Harm Suffered Fourth Segment E315 1 6 1 1 August 2016

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99 In total the Trial Chamber heard 10 witnesses 6 Civil Parties and 1 expert during the S 21 Security Centre trial topic

8 5 4 Internal Purges

100 The Trial Chamber selected and heard the following witnesses Civil Parties and expert in relation to Internal Purges Civil Party CHHUN Samom 2 TCCP 236 Witness MEAS

251 Soeurn MEAS Soeun 2 TCW 917 Witness MOENG Vet 2 TCW 1005 expert

LOCARD Henri 2 TCE 90 Witness HEM Moeun 2 TCW 976 Witness CHIN Saroeun

252 253 2 TCW 1028 Civil Party MY Savoeun MEY Savoeun 2 TCCP 1040 Witness

254 SOY Sao SUOY Sav 2 TCW 102 9 Witness TEP Poch 2 TCW 850 Witness SEM

255 256 Om SEM Am 2 TCW 1031 Witness CHHORN Vorn 2 TCW 1036 Witness

CHEAL Choeun CHIEL Chhoeun 2 TCW 960 Witness HUON Choeurm HUON

257 258 Choeum 2 TCW 1037 Witness LONG Vonn LONG Vun 2 TCW 971 and

259 Witness NUON Trech TES 01 TES Trech 2 TCW 1060

101 The Chamber also heard the Civil Party YUN Bin 2 TCCP 233 on the harm suffered

260 during the Democratic Kampuchea era in relation to Internal Purges

248 Confidential Annex A Provisional and Proposed Schedule for Hearing on Harm Suffered Fourth Segment E315 1 6 1 1 August 2016 249 Confidential Annex A Provisional and Proposed Schedule for Hearing on Harm Suffered Fourth Segment E315 1 6 1 1 August 2016 250 Confidential Annex A Provisional and Proposed Schedule for Hearing on Harm Suffered Fourth Segment E315 1 6 1 1 August 2016 Email Correspondence between Senior Legal Officer and the Lead Co Lawyers Regarding Civil Party S33 2732 SORY Sokhom confidential E315 1 6 3 23 August 2016 251 Decision on International Co Prosecutors’ Request to Admit Written Records of Interview Pursuant to Rules 87 3 4 and to Call Four Additional Witnesses for Upcoming Case 002 02 Segments confidential E319 36 2 25 May 2016 252 Decision on NUON Chea’s First Rule 87 4 Request to Call One Additional Witness and to Admit One Interview for the Case 002 02 Trial Segment on the Phnom Kraol Security Centre E390 2 4 May 2016 253 Decision on NUON Chea Defence Request to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 254 Decision on NUON Chea Defence Request to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 255 Decision on NUON Chea Defence Request to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 256 Decision on NUON Chea Defence Request to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 257 Decision on NUON Chea Defence Request to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 258 Decision on NUON Chea Defence Request to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 259 Decision on NUON Chea Defence Request to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 260 Confidential Annex A Provisional and Proposed Schedule for Hearing on Harm Suffered Fourth Segment E315 1 6 1 1 August 2016

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102 In total the Trial Chamber heard 12 witnesses 3 Civil Parties and 1 expert during the Internal Purges trial topic

8 6 Deceased withdrawn or no longer available to testify

103 The following witnesses and Civil Parties could not be considered as they are deceased

1 KHOEM Peou reserve witness 2 TCW 835 2 SAN Lan 2 TCW 853 3 SOK Ei 2 TCCP 222 4 AUM Mol 2 TCW 863 5 CHEA Sim 2 TCW 878 6 MAM Nai 2 TCW 864 261 7 LY Hor 2 TCW 956

The requests to summons them are therefore moot

104 While the NUON Chea Defence proposed Witness PEN Sovan 2 TCW 952 the

Chamber was aware of his serious health condition and decided not to summons him on that

262 basis The Witness eventually passed away in October 2016 The Chamber selected CHEA Choeum 2 TCW 812 to testily during the Internal Purges trial topic but the NUON Chea

Defence did not provide any contact details and after several unsuccessful attempts to locate

the witness and receiving information that there is a very high likelihood that the witness had

263 died the Chamber decided to cease its efforts to summons this witness The Chamber

selected and summonsed Witnesses CHHAOM Se 2 TCW 840 and TOAT Thoeun 2

264 TCW 829 however these witnesses passed away before they could testify The Chamber

took steps to identify and locate Witness CHAN Savuth 2 TCW 959 but was unsuccessful

265 notably because of Robert LEMKIN’s reluctance to provide any contact information The Chamber also initially selected and summonsed Witness THIOUNN Mumm 2 TCW 890

but subsequently decided to no longer seek to hear him due to the difficulties in securing his testimony via video link from France In particular the Chamber took into consideration the

advanced age and frail health conditions of the witness as well as the serious practical

261 See Lead Co Lawyers’ Response to NUON Chea’s Fourth Request Re Security Centres and Internal Purges E412 1 20 June 2016 para 10 262 See https www cambodiadailv com news pen sovann former prime minister dead 80 l 19936 263 Decision on 2 TCW 812 E29 486 1 18 May 2016 IR 87 3 b 264 Certificate of Death of CHHAOM Se confidential E29 485 10 May 2016 Email from Senior Legal Officer 26 July 2016 265 Decision on NUON Chea Defence Requests to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 Full Reasons confidential E443 10 30 March 2017 Decision on the NUON Chea Internal Rules 87 4 Request to Admit Documents Related to Robert Lemkin 2 TCW 877 and on Two Related Internal Rule 93 Requests E416 4 28 December 2016

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difficulties that would arise in attempting to implement a medical assessment or coercive

266 measures internationally

8 7 Repetitive and or Irrelevant and or Less Relevant

8 7 1 Au Kanseng Security Centre

8 7 1 1 Individuals proposed by the Co Prosecutors

105 The Co Prosecutors proposed Witness MAO Phat 2 TCW 825 and reserve Witness UM Keo 2 TCW 892 to testify in relation to the Au Kanseng Security Centre

106 According the summary of proposed evidence Witness MAO Phat 2 TCW 825 was

imprisoned at Au Kanseng Security Centre in 1977 and could testify as to the location layout

and authority structure of the prison detention conditions as well as the killing of Jarai and

267 women accused of moral offences Having reviewed the material on the Case File relevant

to this witness and noting the matters on which he is proposed to testily the Chamber notes that the witness describes the detention conditions the location and the layout of the prison

and states that he never saw anyone killed although he saw a member of an ethnic minority

268 being taken away to be killed The Chamber finds that MAO Phat 2 TCW 825 ’s

testimony is likely to be substantially repetitive of the evidence heard on these matters in Case

269 002 02 from other witnesses namely Witness PHON Thol 2 TCW 933 Witness

270 MOEURNG Chandy 2 TCW 9 67 and Witness CHIN Kimthong alias Chhang 2 TCW

271 900 The Chamber also recalls that it heard evidence on the structure of the Au Kanseng

272 Security Centre in Case 002 01 from Witness CHHAOM Se 2 TCW 840 The Chamber

therefore decides not to summons this witness

107 Reserve Witness UM Keo 2 TCW 892 ’s summary of proposed evidence suggests that

he was a medic who was detained at the Au Kanseng Security Centre in September 1977 and

266 Decision Withdrawing Witness 2 TCW 890 from the List of Witnesses Civil Parties and Experts for Case 002 02 confidential E202 322 3 9 December 2016 IR 87 3 b 267 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 15 16 268 See Written Record of Interview of MAO Phat E3 9326 6 May 2008 Written Record of Interview of MAO Phat E3 8748 29 September 2010 269 T 2 March 2016 PHON Thol T 3 March 2016 PHON Thol 270 T 3 March 2016 MOEURNG Chandy 271 T 21 March 2016 CHIN Kimthong alias Chhang 2 TCW 900 T 22 March 2016 CHIN Kimthong alias Chhang 2 TCW 900 272 See T 11 January 2013 and 8 April 2013 see also Written Record of Interview of CHHAOM Se E3 405 31 October 2009

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later moved to Re education School 809 His proposed testimony relates to the detention

273 condition torture and types of prisoners detained at the Au Kanseng Security Centre

Having reviewed the material on the Case File relevant to this witness274 and noting the

matters on which he is proposed to testify the Chamber finds that UM Keo 2 TCW 892 ’s

testimony is likely to be substantially repetitive of the evidence heard on these matters in Case

275 002 02 from other witnesses namely Witness PHON Thol 2 TCW 9 3 3 Witness

276 MOEURNG Chandy 2 TCW 9 67 and Witness CHIN Kimthong alias Chhang 2 TCW

277 9 00 The Chamber therefore decides not to summons this witness

8 7 1 2 Individuals proposed by the Lead Co Lawyers

108 The Lead Co Lawyers proposed Civil Parties ROCHAM Blek 2 TCCP 302 NAI

Seak 2 TCCP 266 and SEV Liem 2 TCCP 221 as relevant to the Au Kanseng Security

Centre

109 According to the summary of proposed evidence the Civil Party ROCHAM Blek 2

TCCP 302 an ethnic Jarai could testify on the detention conditions interrogation methods

278 and torture at Au Kanseng Civil Party NAI Seak 2 TCCP 266 is proposed to be heard on

his experience as a doctor during the regime as well as on the detention conditions methods

279 of interrogation and torture at Au Kanseng Having reviewed the material on the Case File

relevant to these two Civil Parties the Chamber notes that the information contained therein

280 relating to their time in Au Kanseng is limited In any event noting the matters on which

they are proposed to testily the Chamber finds that their in court statements in relation to Au

Kanseng are likely to be substantially repetitive of the evidence heard on these matters in

281 Case 002 02 from other witnesses namely Witness PHON Thol 2 TCW 933 Witness

273 Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] confidential E305 6 5 9 May 2014 p 5 274 See Written Record of Interview of UM Keo E3 5173 8 May 2008 Written Record of Interview of UM Kev confidential E3 8740 28 September 2010 275 T 2 March 2016 PHON Thol T 3 March 2016 PHON Thol 276 T 3 March 2016 MOEURNG Chandy 277 T 21 March 2016 CHIN Kimthong alias Chhang 2 TCW 900 T 22 March 2016 CHIN Kimthong alias Chhang 2 TCW 900 278 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 27 279 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 17 18 280 Civil Party Application of ROCHAN Blek 09 VU 00041 confidential E3 4766 22 November 2008 Supplementary Information E3 4767 23 June 2010 Civil Party Application of NAI Seak 09 VU 02027 confidential E3 6461 17 October 2009 Supplementary Information of Civil Party Applicant NAI Seak 09 VU 02027 confidential E3 6461a 30 June 2010 281 T 2 March 2016 PHON Thol T 3 March 2016 PHON Thol

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282 MOEURNG Chandy 2 TCW 9 67 and Witness CHIN Kimthong alias Chhang 2 TCW

283 9 00 The Chamber therefore declines to summons these individuals

110 As regards Civil Party SEV Liem 2 TCCP 221 the Chamber notes that in addition to the detention conditions interrogation and torture at Au Kanseng this Civil Party is also

proposed to testify on the alleged execution of hundreds prisoners on 6 January 1979 prior the

284 arrival of the Vietnamese troops Having reviewed the material on the Case File relevant to

this Civil Party285 and noting the matters on which he is proposed to testify the Chamber

finds that his in court statement on the detention conditions interrogations and torture at the

Au Kanseng Security Centre is likely to be substantially repetitive of the evidence heard on these matters in Case 002 02 from other witnesses namely Witness PHON Thol 2 TCW

286 287 933 Witness MOEURNG Chandy 2 TCW 967 and Witness CHIN Kimthong alias

288 Chhang 2 TCW 9 00 As regards the alleged executions of 6 January 1979 the Chamber

notes that the Closing Order in Case 002 does not contain any reference to the killings of the

prisoners still detained on that day or just prior to the arrival of Vietnamese troops The only

mass killing at the Au Kanseng Security Centre mentioned in the factual allegations in the

Closing Order in Case 002 concerns the killing of numerous Jarai in one instance which

apparently was the matter of telegrams exchanged with the Office 870 and about which the

289 Chamber has heard evidence The Chamber therefore declines to summons this Civil Party

8 7 2 Phnom Kraol Security Centre

111 The Chamber notes that among the six individuals proposed by the Co Prosecutors in

their Revised Lists the Trial Chamber heard three while the other three were reported as

282 T 3 March 2016 MOEURNG Chandy 283 T 21 March 2016 CHIN Kimthong alias Chhang 2 TCW 900 T 22 March 2016 CHIN Kimthong alias Chhang 2 TCW 900 284 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 34 285 See Civil Party Application of SEV Liem 08 VU 02339 E3 6004 5 December 2008 Supplementary Information E3 6004a 24 April 2015 286 T 2 March 2016 PHON Thol T 3 March 2016 PHON Thol 287 T 3 March 2016 MOEURNG Chandy 288 T 21 March 2016 CHIN Kimthong alias Chhang 2 TCW 900 T 22 March 2016 CHIN Kimthong alias Chhang 2 TCW 900 289 Closing Order para 621 624 1494

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290 deceased The other Parties did not propose any witness or Civil Party for this security

291 centre in their Revised Lists

8 7 3 S 21 Security Centre

8 7 3 1 Individuals proposed by the Co Prosecutors

112 The Co Prosecutors proposed SAOM Met 2 TCW 902 and NHEP Hau 2 TCW 811

former guards at S 21 as reserve witnesses in relation to S 21 Security Centre trial topic

113 Witness SAOM Met 2 TCW 902 ’s summary of proposed testimony suggests that he

could testify on his role in the special unit tasked with guarding ‘important prisoners’ under KAING Guek Eav alias Duch’s supervision the composition of prisoners at S 21 their

292 detention conditions methods of torture and disappearances The summary of proposed

testimony suggests that Witness NHEP Hau 2 TCW 811 could testify about receiving

instructions from Duch on CPK policy and on guards’ duties as well as about the detention

conditions of the prisoners interrogation torture and the execution of the last prisoners upon

293 the fall of Phnom Penh in January 1979 Having reviewed the material on the Case File

relevant to these proposed witnesses and noting the matters on which they are proposed to

294 testify the Chamber finds that their testimonies on S 21 are likely to be substantially

repetitive of and less relevant than the testimony of other witnesses heard by the Chamber on these matters in Case 002 02 including Witness PRAK Khorn PRAK Khan 2 TCW

295 296 931 Witness HIM Huy 2 TCW 9 06 Witness KAING Guek Eav alias Duch 2 TCW

297 298 2 916 Witness SUOS Thy 2 TCW 8 1 6 Witness LACH Mean 2 TCW 898 Witness

290 See paras 95 103 104 291 The Chamber heard two additional witnesses selected proprio motu by the Chamber and one additional Civil Party proposed by the Co Prosecutors pursuant to Internal Rule 87 4 See para 95 292 Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] confidential E305 6 5 9 May 2014 p 2 293 Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] confidential E305 6 5 9 May 2014 pp 1 2 294 Written Record of Interview of SAOM Met confidential E3 7669 28 November 2007 DC Cam Statement of SAOM Met confidential E3 7520 25 January 2003 Written Record of Interview of NHEP Hau confidential E3 7638 19 October 2007 295 T 27 April 2016 PRAK Khorn PRAK Khan 2 TCW 931 296 T 5 May 2016 HIM Huy 297 For example T 8 June 2016 KAING Guek Eav T 9 June 2016 KAING Guek Eav T 16 June 2016 KAING Guek Eav T 21 June 2016 KAING Guek Eav 298 T 2 June 2016 SUOS Thy T 3 June 2016 SUOS Thy T 6 June 2016 SUOS Thy T 7 June 2016 SUOS Thy 299 T 25 April 2016 LACH Mean T 26 April 2016 LACH Mean

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~~~ ~~~ Thim ~~~~ Sithim 2 TCW 808 Civil Party CHUM Mey alias Mei 2 TCCP

301 243 and to the extent lesser extent NOEM Oem NIM Kimsreang NIM Im 2 TCW

302 8 54 The Chamber therefore declines to summons these individuals

8 73 2 Individuals proposed by the Lead Co Lawyers

114 The Lead Co Lawyers proposed Civil Parties CHIN Met 2 TCCP 242 PHOAK Khan

2 TCCP 291 and NAM Mon 2 TCCP 267 who all previously testified in Case 001 as potentially relevant to the S 21 Security Centre trial topic

115 According to the summary of proposed evidence Civil Party CHIN Met 2 TCCP 242

could describe her arrest and detention at S 21 where she was detained for 15 days before

303 being sent to S 24 including the conditions of detention and interrogations Civil Party

PHOAK Khan 2 TCCP 291 ’s summary of proposed evidence suggests that the Civil Party

is a direct victim of torture detention and other crimes at S 21 as he and his wife were sent to

S 21 to be tortured and interrogated In October 1978 the Civil Party was allegedly tortured

and interrogated by “Duch” and while there was an order for his execution he managed to

304 survive Civil Party NAM Mon 2 TCCP 267 ’s summary of proposed evidence suggests

that the Civil Party a former doctor in S 21 is a direct victim of detention torture rape and other crimes at S 21 Security Centre and could describe the conditions and the functioning of

305 S 21 as well as the detention and interrogation methods

116 Having reviewed CHIN Met’s 2 TCCP 242 Civil Party Application in Case 002 and

anew the transcript of her in court statement during the Case 001 proceedings which has been

306 admitted in Case 002 the Chamber notes that her evidence mostly deals with her

307 308 experience at S 24 which does not fall within the scope of Case 002 02 In this regard this Civil Party’s proposed evidence is irrelevant As regards the 15 days that the Civil Party

allegedly spent at S 21 before being transferred to S 24 the Chamber notes that she has

300 T 2 May 2016 MAK Thim MAKK Sithim 301 T 18 April 2016 CHUM Mey alias Mei 302 T 15 September 2016 NOEM Oem NIM Kimsreang NIM Im 2 TCW 854 303 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 7 304 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 25 305 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 18 306 Transcript of Proceedings “Duch” Trial 8 July 2009 E3 7456 307 Civil Party Application of CHIN Mat confidential E3 4717 15 December 2008 308 Decision on Additional Severance of Case 002 and Scope of Case 002 02 E301 9 1 4 April 2014 Annex List of Paragraphs and Portions of the Closing Order relevant to Case 002 02 E301 9 1 1 4 April 2014

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 58 July 2017 ERN>01516022 002 19 09 2007 ECCC TC E459

already been heard extensively in previous proceedings on this matter and it is unlikely that

hearing her again will assist clarifying whether she was indeed detained in S 21 rather than at

309 the detention facility of Division 450 The Chamber therefore declines to summons this Civil Party

117 Having reviewed the available evidence admitted in Case 002 concerning PHOAK Khan

310 2 TCCP 291 in particular his Civil Party application and the transcript of his in court

311 statement during the Case 001 proceedings the Chamber notes that the description

provided of his place of detention does not match that of S 21 and that contrary to standard

S 21 procedures the Civil Party stated that he was neither photographed nor compelled to

provide a biography In addition the Civil Party’s account of his escape from the place of

execution and the geographical indicia provided appear to be inconsistent with Choeung Ek

312 where he claims to have been left for dead The Chamber also observes that great

discrepancies were noted during Case 001 in relation to the Civil Party’s account of his escape

313 from execution The Trial Chamber is not convinced that a further appearance in the current

case will assist to clarify these matters and therefore declines to summons this Civil Party

118 As regards the Civil Party NAM Mon 2 TCCP 267 the Chamber finds that there were inconsistencies between her in court statement during the Case 001 proceedings her Civil

314 Party Application and other related pieces of evidence admitted in Case 002 Concerning

the allegation of rape she suffered at S 21 the Chamber has clarified on several occasions

309 Transcript of Proceedings “Duch” Trial 8 July 2009 E3 7456 pp 97 98 310 Civil Party Application of Mr PHOAK Khan confidential E3 5891 12 May 2009 311 Transcript of Proceedings “Duch” Trial 7 July 2009 E3 7455 312 KAING Guek Eav Trial Judgement para 647 The SCC subsequently found that the Civil Party was an indirect victim due to the loss of his wife at S 21 and reversed the Trial Chamber’s decision in this regard The SCC however found that there was “no ground to intervene with the Trial Chamber’s assessment of his evidence in [Case 001]” and concluded that the Civil Party did not demonstrate his direct victim status KAING Guek Eav Appeal Judgement paras 597 598 313 See Civil Party Application of PHOAK Khan confidential E3 5891 18 May 2009 where the Civil Party states that when Duch started executing people one evening in November 1978 the Civil Party was at the end of the queue and managed to hide in a nearby pond without drawing anyone’s attention then escape to Prey Khmer where a person named Chu hid him until 7 January 1979 During the KAING Guek Eav Trial instead the Civil Party stated that his attempted execution was on 6 January 1979 that he was the third in line and made to kneel on the edge of the pit where he received two blows that caused him to fall into the pit unconscious Other people were killed and fell on him and he was left for dead He woke up after several hours and managed to escape Transcript of Proceedings “Duch” Trial 7 July 2009 E3 7455 pp 67 68 79 80 314 Civil Party Application of NAM Mon confidential E3 5890 23 November 2007 Annex 3 Description of Crime by NAM Mon confidential E3 6947 9 July 2008 Summary of Complaint of NAM Mon 23 February 2008 D230 2 4 2 133b Letter to the President of the Trial Chamber D348 1 2 26 August 2009 Authority 10 Supplementary Information Form of Civil Party NAM Mon 09 VU 02078 E3 5890c 17 April 2014 confidential Transcript of Proceedings “Duch” Trial 9 July 2009 E3 7457 Transcript of Proceedings “Duch” Trial 13 July 2009 E3 7458 Written Record of Interview of Civil party NAM Mon E3 5602 17 March 2010

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and more recently on 30 August 2016 that the scope of the trial in Case 002 02 does not

encompass factual allegations of rape relating to incidents which occurred outside the context

315 of forced marriage and in particular in security centres The immediate appeal against this

316 latest Trial Chamber decision was dismissed by the Supreme Court Chamber Insofar as it

concerns allegations of rape she suffered while detained at S 21 NAM Mon 2 TCCP 267 ’s proposed evidence is therefore of limited relevance

119 The Chamber further considers that the remaining proposed evidence of NAM Mon 2 TCCP 267 concerning the conditions of detention she experienced at S 21 is likely to be substantially repetitive of and less relevant than the testimony of other witnesses heard by the

Chamber on these matters in Case 002 02 including Witness PRAK Khorn PRAK Khan 2

317 318 TCW 931 Witness HIM Huy 2 TCW 906 Witness KAING Guek Eav alias Duch 2

319 320 321 TCW 916 Witness SUOS Thy 2 TCW 816 Witness LACH Mean 2 TCW 898

322 Witness MAK Thim MAKK Sithim 2 TCW 80 8 Civil Party CHUM Mey alias Mei 2

323 TCCP 243 and to the extent lesser extent NOEM Oem NIM Kimsreang NIM Im 2

324 TCW 8 54 The Chamber therefore declines to summons this Civil Party

8 7 3 3 Individuals Proposed by the NUON Chea Defence

1 S 21 Security Guards

120 The NUON Chea Defence proposed the following S 21 security guards who in its view

may assist in establishing facts and verifying the reliability and accuracy of the other testimony concerning this crime site Witness CHEAM Sour 2 TCW 826 Witness CHUUN

Phal 2 TCW 872 Witness KHIEU Ches 2 TCW 907 Witness KOK Sros 2 TCW 941

315 Decision on Lead Co Lawyers’ Rule 92 Submission on the Confirmation of the Scope of Case 002 02 Concerning the Charges of Rape Outside the Context of Forced Marriage E306 7 3 30 August 2016 paras 15 19 See also Trial Chamber Memorandum entitled “Further Information Regarding Remaining Preliminary Objections” E306 25 April 2014 para 3 and Decision on KHIEU Samphan’s Request for Confrontation among Witness SREY Than and Civil Parties SAY Sen and SAUT Saing and Disclosure of Audio Recordings of Interviews of SAY Sen E348 4 12 June 2015 para 11 316 Decision on Civil Parties’ Immediate Appeal against the Trial Chamber’s Decision on the Scope of Case 002 02 in Relation to the Charges of Rape SCC E306 7 3 1 4 12 January 2017 317 T 27 April 2016 PRAK Khorn PRAK Khan 2 TCW 931 318 T 5 May 2016 HIM Huy 319 For example T 8 June 2016 KAING Guek Eav T 9 June 2016 KAING Guek Eav T 16 June 2016 KAING Guek Eav T 21 June 2016 KAING Guek Eav 320 T 2 June 2016 SUOS Thy T 3 June 2016 SUOS Thy T 6 June 2016 SUOS Thy T 7 June 2016 SUOS Thy 321 T 25 April 2016 LACH Mean T 26 April 2016 LACH Mean 322 T 2 May 2016 MAK Thim MAKK Sithim 323 T 18 April 2016 CHUM Mey alias Mei 324 T 15 September 2016 NOEM Oem NIM Kimsreang NIM Im 2 TCW 854

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Witness SAOM Met 2 TCW 902 and Witness PESS Matt aka PES Math alias LY Try 2

325 TCW 824 The Chamber recalls that SAOM Met 2 TCW 902 was also proposed by the

326 Co Prosecutors as a reserve witness and is addressed above

121 The summary of proposed testimony suggests that Witness CHEAM Sour 2 TCW 826

who previously testified in Case 001 could describe his experience as a guard at S 21 and

testify on the conditions of detention the structure of S 21 as well as on the allegations of

327 torture and murder According to the summary of proposed testimony of Witness CHUUN

Phal 2 TCW 872 who also testified in Case 001 the proposed witness could testily on the

328 general detention conditions in S 21 and allegations of rape and executions Witness

KHIEU Ches 2 TCW 907 ’s summary of proposed testimony suggests he could describe his

329 experience as an S 21 guard and the arrests of prisoners Witnesses KOK Sros 2 TCW

941 and SAOM Met 2 TCW 902 both of whom testified in Case 001 and PESS Matt aka

PES Math alias LY Try 2 TCW 824 are proposed to describe their experience as S 21

330 guards

122 The Chamber has reviewed the material on the Case File relevant to these individuals

331 taking into account the matters on which they are proposed to testily According to this

material Witness CHEAM Sour 2 TCW 826 was a guard outside the perimeter of the

compound of S 21 He allegedly did not participate in the arrests or transfer of prisoners did

not hear of people being interrogated and tortured but may have witnessed the killing of a

332 foreign person Witnesses CHUUN Phal 2 TCW 872 and KOK Sros 2 TCW 941

recount their experience as S 21 guards describe the detention conditions the arrival of

325 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 2 4 8 13 14 16 326 See para 113 327 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 2 328 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 4 329 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 8 330 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 8 13 14 331 Transcript of Proceedings “Duch” Trial 5 August 2009 CHEAM Sour E3 7469 Annex 00023 POW MIA Interview of CHEAM Soeur confidential E3 7836 6 October 2001 Transcript of Proceedings “Duch” Trial 10 August 2009 CHUUN Phal E3 7470 Magazine of DC CAM Searching for Truth Number ‘ 31 July 2002 “Criticism and Self Criticism” ERN En 00081255 Transcript of Proceedings “Duch” Trial 22 July 2009 KOK Sros E3 7464 Transcript of Proceedings “Duch” Trial 27 July 2009 KOK Sros E3 7465 332 Transcript of Proceedings “Duch” Trial 5 August 2009 CHEAM Sour E3 7469 The Trial Chamber in Case 001 found that although there were some allegations that some foreigners were burnt alive it was not satisfied that this had been proven beyond reasonable doubt KAING Guek Eav Trial Judgement para 209

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333 prisoners and noticing signs of torture on the prisoners While Witness CHUUN Phal 2

TCW 872 discusses being assigned on one occasion to bury bodies at Choeung Ek the

Chamber notes that his evidence relating to rapes in S 21 is limited to the fact that he heard

334 “people talking about it” Further this matter is of limited relevance given that the scope of

the trial in Case 002 02 doesn’t encompass the factual allegations of rape relating to incidents which occurred outside the context of forced marriage According to the material relevant to

KHIEU Ches 2 TCW 907 the witness was about 13 14 years old when he became a guard

on the upper floor at S 21 where the light prisoners were held and remained in that position for about three months He describes the detention condition of the prisoners and that

335 prisoners had bruises and injuries on their bodies when they returned from interrogations

Witness PESS Matt aka PES Math alias LY Try 2 TCW 824 ’s statement discusses a

336 training session at the political school and briefly his experience as a guard The Chamber

finds that the testimonies of these proposed witnesses are likely to be substantially repetitive

of and less relevant than the evidence heard by the Chamber on these matters in Case 002 02

337 from other individuals including Witness PRAK Khorn PRAK Khan 2 TCW 931

338 339 Witness HIM Huy 2 TCW 9 06 Witness TAY Teng 2 TCW 865 Witness KAING

340 341 Guek Eav alias Duch 2 TCW 9 1 6 Witness SUOS Thy 2 TCW 816 Civil Party

342 CHUM Mey alias Mei 2 TCCP 243 and to a lesser extent Witness NOEM Oem NIM

343 Kimsreang NIM Im 2 TCW 85 4 The Chamber therefore declines to summons these

witnesses

2 S 21 Detainees

333 Transcript of Proceedings “Duch” Trial 10 August 2009 E3 7470 Transcript of Proceedings “Duch” Trial 22 July 2009 KOK Sros E3 7464 Transcript of Proceedings “Duch” Trial 27 July 2009 KOK Sros E3 7465 334 Transcript of Proceedings “Duch” Trial 10 August 2009 E3 7470 ERN En 00361888 00361889 335 Written Record of Interview of KHIEU Chas confidential E3 7668 28 November 2007 Annex 00021 Debriefing of KHIEU Peou alias KHIEU Ches Former Guard at Tuol Sleng Prison confidential E3 7834 28 September 2011 Magazine of DC CAM Searching for truth Number 31 July 2002 “Criticism and Self Criticism” E3 1918 ERN En 00081255 336 Written Record of Interview of PES Math E3 3 52 18 March 2008 337 T 27 April 2016 PRAK Khorn PRAK Khan 2 TCW 931 338 T 5 May 2016 HIM Huy 339 T 21 April 2016 TAY Teng 340 For example T 8 June 2016 KAING Guek Eav T 9 June 2016 KAING Guek Eav T 14 June 2016 KAING Guek Eav T 15 June 2016 KAING Guek Eav T 16 June 2016 KAING Guek Eav T 21 June 2016 KAING Guek Eav T 22 June 2016 KAING Guek Eav 341 T 2 June 2016 SUOS Thy T 3 June 2016 SUOS Thy T 6 June 2016 SUOS Thy T 7 June 2016 SUOS Thy 342 T 18 April 2016 CHUM Mey alias Mei 343 T 15 September 2016 NOEM Oem NIM Kimsreang NIM Im 2 TCW 854

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123 The NUON Chea Defence proposed Civil Party CHIN Met 2 TCCP 242 and Civil

Party CHUM Neou 2 TCCP 246 who were heard in Case 001 to describe their experience

344 as S 21 detainees The Chamber recalls that Civil Party CHIN Met 2 TCCP 242 was also

proposed by the Lead Co Lawyers and that reasons for not hearing this Civil Party were given

345 above As regards Civil Party CHUM Neou 2 TCCP 246 the Chamber notes that while she lost her husband at S 21 the Civil Party does not claim to have been detained at S 21 but

346 was sent to work at S 24 where she gave birth to a child that died shortly after As noted

above allegations relevant to S 24 do not fall within the scope of Case 002 02 The Trial Chamber is therefore not satisfied that Civil Party CHUM Neou 2 TCCP 246 ’s proposed

evidence is relevant and declines to summons her

3 Authenticity and Chain of Custody Witnesses

124 The NUON Chea Defence proposed the following witnesses who would testily on the

authenticity and chain of custody of documents which may assist in establishing the facts

relating to S 21 and verifying the reliability and accuracy of other testimonies concerning this crime site Witness YIN Nean 2 TCW 963 Witness CHEY Sopheara 2 TCW 814 and

347 Witness CHHEM Neang 2 TCW 899 Proposed Witness CHHANG Youk 2 TCW 870

348 is addressed in the Tram ~~~ and Kraing ~~ Chan Security Centre trial topic

125 Witness YIN Nean 2 TCW 963 is a senior archivist and the director of the Tuol Sleng Genocide Museum Witness CHEY Sopheara 2 TCW 814 worked in the archives of the Tuol Sleng Genocide Museum from 1979 until recently and Witness CHHEM Neang 2

TCW 899 is the director of the National Archives of Cambodia The summaries of their

proposed testimonies suggest that they can describe the contents authenticate and explain the chain of custody of the documents contained at the Tuol Sleng Genocide Museum including

344 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 4 16 345 See above para 116 346 Civil Party Application of CHUN Noeu E3 4670 27 March 2008 see also KAING Guek Eav Trial Judgement paras 645 646 fn 1080 347 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 pp 2 4 See also NUON Chea’s Fourth Witness Request for the Case 002 02 Security Centre and “Internal Purges” Segment S 21 Operations and Documentary Evidence confidential E412 7 June 2016 348 See above para 39

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 63 July 2017 ERN>01516027 002 19 09 2007 ECCC TC E459

S 21 photos and confessions and at the National Archives of Cambodia with a view to

349 assisting the Chamber in establishing facts relevant to Case 002 02

126 The Chamber recalls that there is no procedural requirement before the ECCC to call

witnesses with personal knowledge to authenticate documents on the Case File including by

establishing their chain of custody Nonetheless testimony as to the chain of custody and

provenance of documents can assist the Chamber amongst other matter in establishing the

350 authenticity of documents specifically where it is doubtful The Chamber also notes that

the NUON Chea Defence does not identify specific documents photos or confessions the authenticity of which is allegedly doubtful but rather refers to general categories of

documents identified as pertaining to S 21 S 21 photos and S 21 confessions without

351 providing convincing reasons why these documents would not be authentic The Chamber notes that throughout the Security Centre and Internal Purges trial topic S 21 photos

confessions and other documentation relevant to S 21 have been put to witnesses who

because of their position at S 21 have direct knowledge of these documents including as regards their creation and have been able to authenticate such documents These witnesses

352 include Witness KAING Guek Eav alias Duch 2 TCW 9 1 6 Witness HIM Huy 2 TCW

353 354 9 06 Witness SUOS Thy 2 TCW 816 and as regards the S 21 photos specifically

355 Witness NOEM Oem NIM Kimsreang NIM Im 2 TCW 85 4 The Chamber therefore finds that Witness YIN Nean 2 TCW 963 Witness CHEY Sopheara 2 TCW 814 and

349 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 2 4 350 See Reasons following Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre and Decision on SANN Lorn 2 TCW 1007 SOU Phirin 2 TCW 1027 and IV Sarik 2 TCW 1026 E346 2 E346 3 31 March 2016 para 59 Decision on Objections to Documents Proposed to be put Before the Chamber on the Co Prosecutors’ Annexes A1 A5 and to Documents cited in Paragraphs of the Closing Order Relevant to the First Two Trial Segments of Case 002 01 E185 9 April 2012 See also Appeal Judgement F36 23 November 2016 paras 371 372 376 351 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 2 4 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 p 3 see also NUON Chea’s Fourth Witness Request for the Case 002 02 Security Centre and “Internal Purges” Segment S 21 Operations and Documentary Evidence confidential E412 7 June 2016 352 See e g T 15 June 2016 KAING Guek Eav alias Duch T 21 June 2016 KAING Guek Eav alias Duch 353 T 5 May 2016 HIM Huy 354 T 6 June 2016 SUOS Thy 355 ~ 15 16 September 2016 NOEM Oem NIM Kimsreang NIM Im

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 64 July 2017 ERN>01516028 002 19 09 2007 ECCC TC E459

356 Witness CHHEM Neang 2 TCW 899 are of lesser relevance than witnesses selected and

heard by the Trial Chamber on these matters and therefore declines to summons them

4 Prof Walter HEYNOWSKI 2 TCW 946

127 The NUON Chea defence also proposed Prof Walter HEYNOWSKI 2 TCW 946 as

he could describe his experience filming three documentaries focusing on the DK period including “Die Angkar” fdmed in 1981 which includes extensive footage of S 21 and

documentation allegedly discovered there In addition according to the summary of proposed

evidence the witness may assist in authenticating and ascertaining the chain of custody of documents shown in the documentary pertaining to S 21 establishing facts related to S 21

verifying reliability and accuracy of other testimony concerning S 21 as well as establishing

357 facts concerning CPK history and structure and the armed conflict with Vietnam

128 In May and July 2014 the NUON Chea Defence requested to expedite the hearing of

Prof Walter HEYNOWSKI 2 TCW 946 if necessary via video link due to the advanced

358 age of the witness On 7 June 2016 the NUON Chea defence who never provided the

contact details of Prof Walter HEYNOWSKI 2 TCW 946 renewed its request particularly

with regards to original documentation found at S 21 a few months after the fall of the

359 regime Meanwhile the Chamber located and contacted this witness in Berlin and on 21 September 2016 the Chamber indicated that in lieu of hearing the testimony of Prof HEYNOWSKI 2 TCW 946 it had requested information from him regarding certain

360 documents On 2 December 2016 the Chamber received from Prof HEYNOWSKI 2

TCW 946 one orange S 21 logbook with about 246 pages containing entries and several

361 loose pages in German and Khmer which were badly deteriorated On 16 December 2016

the Chamber informed the Parties that it was still considering whether to hear Prof

356 Insofar as Witness CHHEM Neang 2 TCW 899 is also proposed in relation to the Regulation of Marriage trial topic the Chamber finds that his testimony in that regard is likely to be substantially repetitive of evidence heard on those matters in Case 002 02 see below paras 148 158 357 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 6 358 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 6 T 30 July 2014 p 46 359 NUON Chea’s Fourth Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment S 21 Operations and Documentary Evidence confidential E412 7 June 2016 360 Decision on NUON Chea Defence Requests to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 confidential E443 21 September 2016 361 Documents Obtained from Professor Walter Heynowski interim confidential E443 2 7 December 2016 See also Order to Initiate Investigation to Examine Documents Received from Prof Walter Heynowski confidential E443 5 28 December 2016 Order Closing Investigation Related to Documents Received from Prof Walter Heynowski E443 9 26 January 2017

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 65 July 2017 ERN>01516029 002 19 09 2007 ECCC TC E459

362 HEYNOWSKI 2 TCW 946 as a witness On 27 December the Chamber admitted into

363 evidence the orange S 21 logbook In the same decision the Chamber denied the KHIEU

Samphan Defence’s request to re call SUOS Thy 2 TCW 816 and KAING Guek Eav alias

Duch 2 TCW 916 to testify on the content of the orange S 21 logbook on the basis that

both witnesses had been shown excerpts of the documentary “Die Angkar” where pictures of

the orange S 21 logbook are displayed and that while SUOS Thy 2 TCW 816 recognised

the logbook and testified that he was responsible for keeping it KAING Guek Eav alias

Duch 2 TCW 916 stated that he never had access to such type of logbook at S 21 as he was

364 focused on confessions On 26 December 2016 the Chamber also received from Prof

365 HEYNOWSKI 2 TCW 946 a large box full of photographs from S 21 which were

366 admitted into evidence on 12 January 20 1 7 On 11 January 2017 the Chamber announced

the close of the evidentiary hearings and informed the Parties that it might re open the proceedings to hear Prof HEYNOWSKI 2 TCW 946 via video link if this could be

arranged to take place no later than 31 January 2017 On 18 January 2017 however the

Chamber informed the Parties it would not re open the proceedings to hear Prof

HEYNOWSKI 2 TCW 946 and that full reasons for the decision would be provided in due

367 course and are as follows

129 At the outset the Chamber notes that the hearing of Prof HEYNOWSKI 2 TCW 946

presented challenges of a logistical nature In light of his advanced age the witness is 89

years old which would prevent him to travel to Phnom Penh the Chamber contacted the authorities of the Federal Republic of Germany to explore the possibility of hearing Prof

HEYNOWSKI 2 TCW 946 via video link from Berlin The German authorities first

informally indicated that on average the procedure would take 2 to 3 months and subsequently

clarified that the hearing would have to take place on the premises of a District Court under the supervision of the German judicial authorities and with the application of the German law

362 Email from the Senior Legal Officer 16 December 2016 363 Decision on Request to Admit Logbook and to Recall two Witnesses regarding S 21 confidential E443 3 27 December 2016 paras 2 3 S 21 Prisoner List Daily Report E3 10770 “orange S 21 logbook” 364 Decision on Request to Admit Logbook and to Recall two Witnesses regarding S 21 confidential E443 3 27 December 2016 para 4 365 Further Documents Obtained from Professor Walter Heynowski E443 2 1 5 January 2017 366 Decision on the Requests by the Co Prosecutors and the KHIEU Samphan Defence to Admit Photographs related to the Documentation provided by Professor Walter Heynowski 2 TCW 946 E443 6 12 January 2017 for the photographs see ~~ 10785 ~~ 10786 ~~ 10787 ~~ 10788 E3 10789 367 Notice of Trial Chamber’s Decision not to Hear 2 TCW 946 Walter HEYNOWSKI E443 7 18 January 2017

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 66 July 2017 ERN>01516030 002 19 09 2007 ECCC TC E459

368 during the hearing As a consequence the hearing would require the participation of a German judge who would communicate the questions of the judges and the Parties from the

369 ECCC to the witness In the circumstances the provision of interpretation into German was

also necessary This proved to be particularly challenging as it would have required either

consecutive interpretation by an English German interpreter on the premises of the District

Court in Berlin with a higher risk of misinterpretation or for simultaneous interpretation the

construction of an additional interpreter’s booth on the premises of the ECCC which would

370 not have been possible within a reasonable time

130 As regards the possibility for Prof HEYNOWSKI 2 TCW 946 to authenticate and ascertain the chain of custody of S 21 documents the Chamber notes that SUOS Thy 2

TCW 816 recognised the orange S 21 logbook shown in the documentary “Die Angkar” and

371 testified that he was responsible for maintaining it The Chamber also notes that orange S

21 logbook ~~ 10770 consists of 246 sheets providing daily records of persons in and out of

S 21 over a period of eight months in 1977 and recalls that dozens of other such log sheets for

1977 from S 21 were on the Case File before the orange S 21 logbook was obtained see

El 438 5 and that some of these which are mere duplicates of the sheets contained in the

orange S 21 logbook were put to both SUOS Thy 2 TCW 816 and KAING Guek Eav

372 alias Duch 2 TCW 916 during their testimonies Finally as regards the possible evidence in relation to “facts concerning CPK history and structure and the armed conflict with Vietnam” the Defence did not demonstrate the basis for the assumption that the witness

had any relevant knowledge about this Furthermore the Chamber notes it has heard other

witnesses Civil Parties and experts on those matters and finds that Prof HEYNOWSKI 2

TCW 946 ’s testimony on these matters is likely to be substantially repetitive of the evidence

373 before the Chamber The Chamber therefore declines to summons him

368 See Request for Information and Assistance Regarding Remote Testimony E443 7 1 14 December 2016 Note Verbale from the Embassy of the Federal Republic of Germany in Phnom Penh E443 8 1 10 January 2017 369 See Note Verbale from the Embassy of the Federal Republic of Germany in Phnom Penh E443 8 1 10 January 2017 370 See IR 87 3 b 371 T 6 June 2016 SUOS Thy pp 73 78 372 T 6 June 2016 SUOS Thy T 15 June 2016 KAING Guek Eav alias Duch Decision on Request to Admit Logbook and to Recall two Witnesses regarding S 21 confidential E443 3 27 December 2016 The OCIJ analyst HIN Sotheany recognized the orange S 21 logbook as a master list of prisoners see T 9 January 2017 HIN Sotheany pp 80 81 373 See paras 162 169 See also for example the testimonies of Witnesses KHOEM Boeun alias Yeay Boeun 2 TCW 979 PECH Chim alias TA Chim 2 TCW 809 Richard Beebe DUDMAN 2 TCW 923 SANN Lorn 2 TCW 1007 and expert Elizabeth BECKER 2 TCE 97

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8 7 4 Internal Purges

8 7 4 1 Individuals Proposed by the Co Prosecutors

131 The Chamber recalls that Witnesses THUCH Sithan 2 TCW 842 and NHOEK LY 2

TCW 920 who were proposed for the Internal Purges trial topic were heard during the trial

374 topic on the Role of the Accused

132 The summary of Witness KAO Son 2 TCW 940 ’s proposed evidence suggests that the

witness who was the chief of a company within military Division 920 could testify that in

1977 Division 920 cadres were accused of treason and that he was ordered by the commanders of Division 801 in Ratanakiri province to arrest his former commanders in

375 Division 920

133 The Chamber notes that according to the witness’s statement to DC Cam from 1977 1978 onward soldiers and cadres within the witness’s Division started being accused of being

traitors were arrested and questioned Witness KAO Son 2 TCW 940 also states that the

former heads of Division 920 Ta Chhin and Ta Say were arrested “later on” and that new

leaders from Division 801 were introduced indicating that Ta San became chief of Division

376 920 Having reviewed the material on the Case File relevant to this witness and noting the

matters on which they are proposed to testify the Chamber considers that his testimony is

likely to be substantially repetitive of the evidence heard on these matters in Case 002 02

377 from other witnesses including CHIN Kimthong alias Chhang 2 TCW 900 KAING

378 Guek Eav alias Duch 2 TCW 916 and Civil Party PHAN Van alias KHAM Phan 2

379 TCW 1011 The Chamber will therefore not summons this witness

374 See para 172 375 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 p 4 376 Statement of KAO Son DC Cam confidential E3 9042 19 March 2011 pp 26 29 30 31 33 377 T 22 March 2016 CHIN Kimthong 378 T 15 June 2016 KAING Guek Eav 379 T 7 April 2016 PHAN Van Written Record of Interview of PHAN Van alias KHAM Phan E3 58 21November 2008 ERN En 00250088 00250089

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8 7 4 2 Individuals proposed by the Lead Co Lawyers

134 The Lead Co Lawyers proposed Civil Parties LOEM LIM Korn 2 TCCP 277 HEL

Oun 2 TCCP 249 and PIN Phorn 2 TCCP 299 as relevant to the Internal Purges in the

380 East Zone

135 According to the summary of proposed evidence LOEM LIM Korn 2 TCCP 277

could describe the internal purges in the East Zone and the purges upon arrival in Pursat

381 following the forced movement of population Civil Parties HEL Oun 2 TCCP 249 ’s and PIN Phom 2 TCCP 299 ’s summaries of proposed evidence indicate that they could describe

382 the purges in the East Zone and their experience as direct victims of the purges Having

reviewed the material on the Case File relevant to these Civil Parties and noting the matters

on which they are proposed to testify the Chamber finds that the in court statement of Civil

383 Party PIN Phorn 2 TCCP 2 99 is likely to be substantially repetitive of the evidence heard

on these matters in Case 002 02 from other witnesses and Civil Parties including Civil Party

384 385 CHHUN Samorn 2 TCCP 2 3 6 Witness KEO Kin 2 TCW 9 1 0 and Civil Party MY

386 Savoeun MEY Savoeun 2 TCCP 1040 As regards the proposed evidence of Civil

Parties HEL Oun 2 TCCP 249 and LOEM LIM Korn 2 TCCP 277 the Chamber notes

387 that their evidence relates mostly to the movement of population phase 3 which does not

388 fall within the scope of Case 002 02 The Chamber therefore decides not to summons these

Civil Parties

380 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 9 10 15 16 25 381 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 15 16 382 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 9 10 25 383 Civil Party Application of PIN Phom 09 VU 01850 confidential E3 6603 9 July 2009 Authority 12 Supplementary Information Form of Civil Party PIN Phom 09 VU 01850 confidential E3 6603a 3 July 2014 384 T 28 June 2016 CHHUN Samom 385 T 11 June 2015 KEO Kin 386 T 17 August 2016 MY Savoeun MEY Savoeun 387 Civil Party Application of HEL Oun 09 VU 04235 confidential E3 6800 30 June 2009 Supplementary Information of Civil Party Applicant confidential E3 6800a 23 June 2010 Civil Party Application of LIM Kom 09 VU 01109 E3 6055 23 June 2010 Supplementary Information of Civil Party LIM Kom E3 6055a 24 April 2015 Closing Order para 284 388 See Decision on Additional Severance of Case 002 and Scope of Case 002 02 E301 9 1 4 April 2014 para 37

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 69 July 2017 ERN>01516033 002 19 09 2007 ECCC TC E459

8 7 4 3 Individuals proposed by the NUON Chea Defence

136 The NUON Chea Defence proposes Witnesses HENG Samrin 2 TCW 831 POL

Saroeun 2 TCW 962 OUK Bunchhoeun 2 TCW 951 and MEAS Muth 2 TCW 903 as

relevant to the Internal Purges

137 According to the summary of proposed evidence MEAS Muth 2 TCW 903 can

describe his experience as CPK military divisional and naval commander and assist in establishing facts concerning the “CPK military command structure strategies operations and the roles of individuals within the military internal divisions within the CPK CPK policies

concerning internal and external enemies top ranking CPK factional support for Vietnamese aggression against DK including but not limited to Sao Phim Heng Samrin and others and

389 designation of traitors and internal purges”

138 The Trial Chamber notes that on 3 March 2015 MEAS Muth 2 TCW 903 was charged

in absentia in Case 003 with violations of Articles 501 and 506 of the 1956 Penal Code grave breaches of the Geneva Conventions and the crimes against humanity of murder

390 extermination enslavement imprisonment persecution and other inhumane acts On 14 December 2015 MEAS Muth 2 TCW 903 appeared before the International Co

Investigating Judge who rescinded some of these charges and charged him with the crime of

genocide and additional counts of crimes against humanity grave breaches of the Geneva

391 Conventions and violations of Articles 501 and 506 of the 1956 Penal Code On 10

January 2017 the International ~~ Investigating Judges notified the Parties in Case 003 of the

392 conclusion of the judicial investigations against MEAS Muth 2 TCW 903 Given that the

outcome of this judicial investigation is still pending MEAS Muth 2 TCW 903 remains a

charged person The Trial Chamber recalls that Internal Rule 24 4 stipulates that the

Chamber should not call as a witness “any person against whom there is evidence of criminal

responsibility except as provided in Rule 28” Taking into consideration the framework foreseen by Internal Rules 28 3 b and 28 5 the Chamber decides given the specific

context of this case not to summons MEAS Muth 2 TCW 903 to testify as a witness

389 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 10 390 Case 003 Decision to Charge Meas Muth in Absentia D128 3 March 2015 391 Case 003 Written Record of Initial Appearance of Meas Muth D174 14 December 2015 392 Case 003 Notice of Conclusion of Judicial Investigation against Meas Muth D225 10 January 2017

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139 The Chamber recalls that it already decided not to summons Robert LEMKIN 2 TCW

393 877 and addressed IN Thoeun 2 TCW 961 in a separate decision THETH Sambath 2

394 TCW 885 is addressed in the section of this decision on the Role of the Accused

140 Finally the Chamber recalls that it could not reach a consensus on whether to summons

Witnesses HENG Samrin 2 TCW 831 POL Saroeun 2 TCW 962 and OUK Bunchhoeun

395 396 2 TCW 951 and will address them separately below

8 7 5 Experts on S 21 and Internal Purges

141 The NUON Chea Defence proposed experts Laura J SUMMERS 2 TCE 100 Michael

VICKERY 2 TCE 94 and David CHANDLER 2 TCE 84 as relevant to the nature of the

397 armed conflict and internal purges It further proposed expert David CHANDLER 2 TCE

84 to provide expertise on S 21 including structure conditions operations and roles of

398 individuals The Chamber recalls that it confirmed that Michael VICKERY 2 TCE 94

who was also proposed by the KHIEU Samphan Defence would not testify as an expert in

399 this case According to the summary of proposed evidence both David CHANDLER 2

TCE 84 and Laura J SUMMERS 2 TCE 100 would provide evidence on “the armed

conflict with Vietnam alternative power structures during the DK period Vietnamese

aggression against DK and top ranking CPK factional support including but not limited to Sao Phim Rhos Nhim Keo Meas Ya Koy Thuon Heng Samrin and others internal

400 divisions within the CPK [ ] and designation of traitors and internal purges”

142 The Chamber notes that David CHANDLER 2 TCE 84 previously testified in both

Case 001 and Case 002 In its decision on the assignment of experts in Case 002 01 which also addressed David CHANDLER 2 TCE 84 the Chamber expressly noted that those

experts had been proposed prior to the severance of Case 002 and that in order to avoid

“unnecessary recall” they could be questioned on all matters within their knowledge or

393 Decision on NUON Chea Defence Requests to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 Full Reasons confidential E443 10 30 March 2017 394 See below para 176 395 Final List of Witnesses Civil Parties and Experts for Case 002 02 E454 27 December 2016 para 4 396 See paras 195 et seq 397 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 18 20 22 398 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 18 399 See Outstanding Issues Relating to Expert Michael Vickery 2 TCE 94 E408 5 4 August 2016 400 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 18 20

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expertise relevant to the entirety of the Closing Order in Case 002 The Parties were reminded that the principal focus of their examination should remain the subject matter of Case 002 01

and that matters going beyond such scope should be limited to the areas in which the parties

401 considered any of those individuals to be uniquely qualified to answer As regards David CHANDLER 2 TCE 84 the Co Prosecutors in Case 002 01 indicated that they would

examine him on amongst other things the operation and authority structure of S 21 whereas

the NUON Chea Defence indicated that he could offer insight on alternative command

402 structure in the Khmer Rouge The Chamber notes that David CHANDLER 2 TCE 84

was heard over six days in 2012 in Case 002 01 and testified extensively on the functioning of

S 21 confessions internal purges explicitly referring to the purges in the North and East

Zones as well as on the conflictual relationship with Vietnam including possible evidence of

403 a relationship between Ya the secretary of the Northeast Zone and Vietnam Having regard to the above and noting the evidence heard by the Trial Chamber in Cases 002 01 and

002 02 on the Nature of the Armed Conflict and S 21 Security Centre and Internal Purges

404 including from eight witnesses and one Civil party requested by the NUON Chea Defence the Chamber finds that if recalled another testimony David CHANDLER 2 TCE 84 is

likely to be substantially repetitive Further the proposing Party has not provided any

indication that the expert may have acquired additional expertise since his testimony in Case

405 002 01 The Chamber therefore decides not to summons David CHANDLER 2 TCE 84

to give testimony in Case 002 02

143 As regards Laura J SUMMERS 2 TCE 100 the Chamber notes that the material on

the Case File authored by the proposed expert focusses to a great extent on the Cambodian

historical background from the late 1940s up to the 1980s the evolution of the CPK the

development of its policies and of the agricultural reform as well as an analysis of a speech

401 Decision on Assignment of Experts E215 5 July 2012 para 4 402 Decision on Assignment of Experts E215 5 July 2012 paras 5 6 403 See e g Case 002 01 T 19 July 2012 T 20 July 2012 T 23 July 2012 T 25 July 2012 404 The Chamber heard the following witnesses proposed by the NUON Chea Defence on the internal factions during the Internal Purges trial topic CHIN Saroeun 2 TCW 1028 MY Savoeun MEY Savoeun 2 TCCP 1040 SOY Sao SUOY Sav 2 TCW 1029 SEM Om SEM Am 2 TCW 1031 CHHORN Vom 2 TCW 1036 CHEAL Choeun CHIEL Chhoeun 2 TCW 960 HUON Choeurm HUON Choeum 2 TCW 1037 LONG Vonn LONG Vun 2 TCW 971 NUON Trech TES Ol TES Trech 2 TCW 1060 The Chamber heard the following witnesses proposed by the NUON Chea Defence on the Nature of the Armed Conflict Stephen John MORRIS 2 TCE 98 SIN Oeng SIN Ung 2 TCW 1069 NONG Nim 2 TCW 1070 See also paras 97 101 405 The Chamber is unaware of any new main publication by the expert on the topics relevant to Case 002 02

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406 given by NUON Chea to the delegation of Danish Communists Workers’ Party in 1978

While one of the articles refers to internal purges at the end of 1978 and to pressure from

Vietnam that “exacerbated very long standing organizational and ideological weaknesses and

407 failing” in Cambodia the Chamber finds these references to be marginal Having

considered the material relevant to this proposed expert and noting the matters on which the

expert is proposed to testily the Trial Chamber considers that her testimony is likely to be

substantially repetitive of the evidence heard on these matters in Case 002 02 during the

Nature of the Armed Conflict and Security Centres and Internal Purges trial topics as noted

408 above The Chamber therefore decides not to summons Laura J SUMMERS 2 TCE 100

to give testimony in Case 002 02

8 8 General Witnesses

144 As noted above the KHIEU Samphan Defence proposed experts Philip SHORT 2

TCE 92 and Stephen HEDER 2 TCE 87 to provide testimony on security centres and

409 execution sites generally among other subjects The Trial Chamber recalls that it has

410 already rejected the request to call Stephen HEDER 2 TCE 87 Proposed expert Philip

411 SHORT 2 TCE 92 will be addressed below in the general section on experts

9 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR

THE REGULATION OF MARRIAGE TRIAL TOPIC

145 The following witnesses Civil Parties and experts were proposed by the Parties in their

Revised Lists specifically with regard to the trial topic on the Regulation of Marriage

406 See THE CPK Secret Vanguard of Pol Pot’s Revolution A Comment on Nuon Chea’s Statement Laura Summers The Journal of Communist Studies Volume 3 March 1987 Number 1 E3 53 5 December 2011 Statement of the Communist Party of Kampuchea to the Communist Worker’s Party of Denmark July 1978 E3 196 9 February 2012 Indochina Chronicle “The Cambodian liberation Forces” E3 3423 1 July 1972 Who’s who now in Phnom Penh Laura Summers The GUARDIAN E3 31 26 April 1975 407 THE CPK Secret Vanguard of Pol Pot’s Revolution A Comment on Nuon Chea’s Statement Laura Summers The Journal of Communist Studies Volume 3 March 1987 Number 1 E3 53 ERN En S 00045875 408 See above para 142 409 Ordonnance aux fins du dépôt de pièces actualisées dans le cadre de la préparation du procès 002 02 E305 5 2 9 May 2014 pp 3 5 See para 92 410 The Trial Chamber rejected the requests to call Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 See Decision on Reiterated Request of KHIEU Samphan Defence to Hear Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 E408 6 E408 6 2 3 November 2016 411 See paras 190 194

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 73 July 2017 ERN>01516037 002 19 09 2007 ECCC TC E459

a The Co Prosecutors

1 NAKAGAWA Kasumi 2 TCE 82 2 SENG Soeun 2 TCCP 219 3 PHAN Him alias Thy THI 2 TCW 914 4 HENG Lai Heang alias SA Lai Heang 2 TCCP 251 5 MAO Kroeurn 2 TCCP 264 6 YUOS Phal 2 TCCP 232 7 HORNG Orn 2 TCCP 254 8 YIM Saroeum 2 TCCP 929

9 OEM Pum 2 TCCP 289 reserve witness 10 CHECH Sopha 2 TCCP 281 reserve witness and 412 11 SOEU Ry 2 TCCP 287 reserve witness

b The Lead Co Lawyers

1 CHEA Dieb 2 TCCP 286 2 HENG Kuylang 2 TCCP 276 3 DORK Sokin 2 TCCP 248 4 HENG Mach 2 TCCP 280 5 MOM Vun 2 TCCP 283 6 OM Yoeurn 2 TCCP 274 7 PEN Sochan 2 TCCP 298 8 PRAK Doeun 2 TCCP 300 9 PHAN Him alias Thy THI 2 TCW 914 10 SENG Thâng 2 TCCP 292 11 SOU Sotheavy 2 TCCP 224 12 TEU Ry 2 TCCP 225 13 YUOS Phal 2 TCCP 232 and 413 14 NAKAGAWA Kasumi 2 TCE 82

c The KHIEU Samphan Defence

414 1 LEVINE Peg 2 TCE 81

146 The KHIEU Samphan Defence also proposed expert Roel BURGLER 2 TCE 96 to

415 testify on the Regulation of Marriage amongst other topics

412 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 2 413 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 p 4 414 Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection E305 5 2 9 May 2014 p 2

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147 The NUON Chea Defence did not propose any witness Civil Party or expert specifically

with regard to the trial topic on the Regulation of Marriage It proposed experts Roel

BURGLER 2 TCE 96 Ewa TABEAU 2 TCE 93 and Michael VICKERY 2 TCE 94 as

well as witnesses CHHEM Neang 2 TCW 899 and PECH Chim TA Chim 2 TCW 809

416 to testify generally on the Regulation of Marriage amongst other topics

9 1 Witnesses Civil Parties and Experts heard by the Chamber

148 The Trial Chamber selected and heard during the trial topic on the Regulation of

Marriage the following witnesses Civil Parties and experts Witness NOP Ngim 2 TCW

417 1002 Witness PHAN Him alias Thy THI 2 TCW 914 Civil Party HENG Lai Heang alias SA Lai Heang 2 TCCP 251 Civil Party SENG Soeun 2 TCCP 219 Civil Party YOS Phal YUOS Phal 2 TCCP 232 Civil Party CHEA Deap CHEA Dieb 2 TCCP 286 Civil Party MOM Vun 2 TCCP 283 Civil Party OM Yoeum 2 TCCP 274 Civil Party PEN Sochan 2 TCCP 298 Civil Party SOU Sotheavy 2 TCCP 224 Civil Party PREAP

418 Sokhoeurn 2 TCCP 1064 Expert Kasumi NAKAGAWA 2 TCE 82 and Expert Peggy

LEVINE 2 TCE 81

149 The Chamber also heard the following Civil Parties on the harm they suffered during the

Democratic Kampuchea era KUL Nem 2 TCCP 1066 NGET Chat 2 TCCP 1067 and

SAY Naroeun 2 TCCP 1068

150 In total the Trial Chamber heard 2 witnesses 12 Civil Parties and 2 experts during the

trial topic on the Regulation of Marriage Civil Party PRAK Doeun 2 TCCP 300 was

419 instead heard during the trial topic regarding the Treatment of the Vietnamese In addition

415 Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection E305 5 2 9 May 2014 p 2 416 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 417 Witness NOP Ngim 2 TCW 1002 was selected pursuant to Internal Rule 87 4 following a request by the International Co Prosecutor See Decision on International Co Prosecutor’s Request for Clarification Regarding Proposed Witnesses for the Regulation of Marriage Segment E425 2 7 September 2016 Decision on International Co Prosecutor’s Request to Admit Written Records of Interview Pursuant to Rules 87 3 4 and to call Four Additional Witnesses for Upcoming Case 002 02 Segments E319 36 2 25 May 2016 418 The Trial Chamber selected PREAP Sokhoeurn 2 TCCP 1064 on its own motion and heard oral submissions from the parties on 8 September 2016 See Email from Legal Officer to the Parties 8 September 2016 and T Draft 8 September 2016 pp 60 64 419 See T 2 3 December 2015 PRAK Doeun

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the Chamber also received evidence on the regulation of marriage from several individuals

420 heard during other trial topics throughout Case 002 02

9 2 Withdrawn

151 On 3 June 2016 the Chamber informed the parties that it would hear Civil Party MAO Kroeurn 2 TCCP 264 during this trial topic However the Chamber subsequently found that

MAO Kroeurn 2 TCCP 264 was unfit to testily due to health problems and decided that

421 eventually she should no longer be summonsed

9 3 Repetitive and or Irrelevant and or Less Relevant

9 3 1 Individuals proposed by the Co Prosecutors

152 The summary of YIM Saroeum’s 2 TCCP 929 proposed evidence indicates that she

could testily about being forced to marry in a group ceremony of 48 couples in Siem Reap

Province HORNG Orn’s 2 TCCP 254 statements describe a marriage ceremony in Takeo

Province in 1977 during which she was forced to marry a man alongside 23 other couples and

further describe how she was forced to consummate her marriage under the supervision of her

422 unit chief Having reviewed the material on the Case File relevant to YIM Saroeum’s 2

423 TCCP 929 and HORNG Orn’s 2 TCCP 2 54 and noting the matters on which they are

proposed to testify the Chamber finds that their in court statements are likely to be

substantially repetitive of evidence heard on these matters in Case 002 02 from several witnesses and Civil Parties including Civil Party MOM Vun 2 TCCP 283 Civil Party OM Yoeum 2 TCCP 274 and Civil Party PEN Sochan 2 TCCP 298 Civil Party CHOU Koemlan 2 TCCP 238 Witness CHANG Srey Mom CHEANG Sreimom 2 TCW 834

420 See for example CHOU Koemlan 2 TCCP 238 OUM Suphany 2 TCCP 296 PHNEU Yav 2 TCW 934 CHANG Srey Mom CHEANG Sreimom 2 TCW 834 KHOEM Boeun 2 TCW 979 PECH Chim 2 TCW 809 EK Hoeun 2 TCW 822 who were heard during the trial topic on Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre KONG Uth KANG Ut 2 TCW 855 CHAO Lang 2 TCCP 992 KHIN Vat 2 TCW 866 CHHUM Seng 2 TCW 828 and YI Laisov 2 TCW 841 who were heard during the trial topic on the Worksites 421 Decision on Withdrawal of the Testimony of Civil Party 2 TCCP 264 E29 493 2 11 October 2016 See also Strictly Confidential Medical Assessment Report E29 493 1 25 September 2016 422 Annex III OCP Updated Witness Civil Party and Expert Summaries confidential E305 6 4 9 May 2014 pp 36 42 43 423 See Written Record of Interview of YIM Saroeum E3 7688 20 January 2009 Civil Party Application of HORNG ~~ E3 5897 30 September 2008 Written Record of Interview of Civil Party HORNG ~~ E3 5558 9 September 2009

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 76 July 2017 ERN>01516040 002 19 09 2007 ECCC TC E459

424 Witness PHNEOU Yav 2 TCW 934 and Witness EK Hoeun UL Hoeun 2 TCW 822

The Chamber therefore decides not to summons them

153 The Co Prosecutors proposed Civil Parties CHECH Sopha 2 TCCP 281 and SOEU Ry

425 2 TCCP 287 as reserve Civil Parties for the trial topic on the Regulation of Marriage The

summary of CHECH Sopha’s 2 TCCP 281 proposed evidence describes how she was

forced to get married together with other 82 couples in a ceremony at the Phum Reang Kessei

426 pagoda in December 19 7 8 The summary of SOEU Ry’s 2 TCCP 287 proposed evidence

suggests that she will describe a ceremony in which she and other 83 couples were forcibly

married in Pungro village Battambang Province in 1976 and also give evidence on the

427 supervision and monitoring of the consummation of marriages by the Khmer Rouge

Having reviewed the material on the Case File relevant to these individuals428 and noting the

matters on which they are proposed to testify the Chamber finds that their in court

statements are likely to be substantially repetitive of the evidence heard on these matters in Case 002 02 from several witnesses and Civil Parties including Civil Party MOM Vun 2 TCCP 283 Civil Party OM Yoeurn 2 TCCP 274 Civil Party PEN Sochan 2 TCCP 298 Civil Party CHOU Koemlan 2 TCCP 238 Witness CHANG Srey Mom CHEANG

Sreimom 2 TCW 834 Witness PHNEOU Yav 2 TCW 934 Witness EK Hoeun UL

429 Hoeun 2 TCW 822 and Witness KONG Uth KANG Ut 2 TCW 85 5 The Chamber

therefore decides not to summons these individuals

424 See for example T 16 20 September 2016 MOM Vun T 22 23 August 2016 OM Yoeum T 12 13 October 2016 PEN Sochan T 26 27 January 2015 CHOU Koemlan T 29 January 2 February 2015 CHANG Srey Mom CHEANG Sreimom T 16 17 February 2015 PHNEOU Yav T 7 8 May 2015 EK Hoeun UL Hoeun 425 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 2 See also Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 p 13 426 Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 p 13 427 Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 p 13 428 See Victim’s Unit Report on Civil Party Applicant OEM Pum D22 2063 1 26 March 2010 Civil Party Application of CHECH Sopha E3 6572 7 August 2005 See also Victim’s Unit Report on Civil Party Applicant CHECH Sopha E3 9264 12 May 2010 Civil Party Application of SOEU Ry E3 6780 10 November 2009 Supplementary Information Form of Civil Party Applicant SOEU Ry E3 6780a 23 June 2010 Summary of Supplementary Information of Civil Party Applicant SOEU Ry E3 6780b 12 August 2010 429 See e g T Draft 16 20 September 2016 MOM Vun T 22 23 August 2016 OM Yoeum T 12 13 October 2016 PEN Sochan T 26 27 January 2015 CHOU Koemlan T 29 January 2 February 2015 CHANG Srey Mom CHEANG Sreimom T 16 17 February 2015 PHNEOU Yav T 7 8 May 2015 EK Hoeun UL Hoeun T 25 June 2015 KONG Uth KANG Ut

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 77 July 2017 ERN>01516041 002 19 09 2007 ECCC TC E459

154 The Co Prosecutors also proposed Civil Party OEM Pum 2 TCCP 289 as a reserve

Civil Party as she could provide evidence in relation to the consequences for refusing to enter

430 into a marriage arranged for her by Angkar Having reviewed the material on the Case File

relevant to this Civil Party431 and noting the matters on which she is proposed to testify the Chamber finds that this Civil Party’s in court statement is likely to be substantially repetitive

of the evidence heard on these matters in Case 002 02 from several witnesses and Civil

Parties including Civil Party MOM Vun 2 TCCP 283 Civil Party SOU Sotheavy 2 TCCP 224 Civil Party YOS Phal YUOS Phal 2 TCCP 232 Civil Party OM Yoeum 2 TCCP 274 Witness CHANG Srey Mom CHEANG Sreimom 2 TCW 834 and Witness

432 KONG Uth KANG Ut 2 TCW 85 5 The Chamber therefore decides not to summons

this Civil Party

9 3 2 Individuals proposed by the Lead Co Lawyers

155 The Lead Co Lawyers proposed Civil Party HENG Kuylang 2 TCCP 276 to testify on

her forced marriage in Battambang Province of the Northwest Zone on the climate of fear

that led to her acquiescing to a forced marriage after an initial refusal on the marriage vows

and ceremony surveillance by Khmer Rouge militia and the policy of the Khmer Rouge

433 concerning contact with her husband Having reviewed the material on the Case File

relevant to this Civil Party434 and noting the matters on which she is proposed to testify the Chamber finds that her in court statement is likely to be substantially repetitive of the

evidence heard on these matters in Case 002 02 from several Civil Parties including Civil Party MOM Vun 2 TCCP 283 Civil Party YOS Phal YUOS Phal 2 TCCP 232 Civil Party OM Yoeum 2 TCCP 274 Civil Party CHOU Koemlan 2 TCCP 238 and Witness

430 Confidential Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 p 13 see also Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 2 431 See Victim’s Unit Report on Civil Party Applicant OEM Pum D22 2063 1 26 March 2010 Civil Party Application of OEM Pum E3 6433 8 January 2008 Written Record of Interview of OEM Pum E3 9510 4 February 2014 432 See e g T 16 20 September 2016 MOM Vun T 23 24 August 2016 SOU Sotheavy T 25 August 2016 YOS Phal YUOS Phal pp 17 18 T 22 23 August 2016 OM Yoeum T 29 January 2 February 2015 CHANG Srey Mom CHEANG Sreimom T 25 June 2015 KONG Uth KANG Ut 433 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 11 434 See Victim’s Unit Report on Civil Party Applicant HENG Kuylang D22 3222 1 30 April 2010 Supplementary Information Form of Civil Party Applicant HENG Kuylang E3 6711a 29 June 2010 Supplementary Information Form of Civil Party Applicant HENG Kuylang E3 5036 15 December 2009

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435 CHANG Srey Mom CHEANG Sreimom 2 TCW 834 The Chamber therefore decides

not to summons this individual

156 The summary of DORK Sokin’s 2 TCCP 248 proposed evidence describes the Civil

Party as a direct victim of forced marriage in Takeo Province in the Southwest Zone that

could provide evidence on monitoring by the militia of consummation of marriage and the

436 severe mistreatment she experienced for refusing to consummate her marriage Having

reviewed the material on the Case File relevant to this Civil Party437 and noting the matters on which she is proposed to testily the Chamber finds that her in court statement is likely to be

substantially repetitive of the evidence heard on these matters in Case 002 02 from several Civil Parties including SOU Sotheavy 2 TCCP 224 YOS Phal YUOS Phal 2 TCCP

232 OM Yoeurn 2 TCCP 274 and PREAP Sokhoeurn 2 TCCP 1064 and witnesses

CHANG Srey Mom CHEANG Sreimom 2 TCW 834 and PHNEOU Yav 2 TCW

438 9 34 The Chamber therefore decides not to summons this individual

157 The summary of SENG Thang’s 2 TCCP 292 proposed evidence indicates that he

could provide evidence on being forcibly married with 21 other couples in a ceremony that

439 took place in Ratanakiri Province in the Northeast Zone Having reviewed the material on

the Case File relevant to this Civil Party440 and noting the matters on which he is proposed to testify the Chamber finds that his in court statement is likely to be substantially repetitive of

the evidence heard on these matters in Case 002 02 from several witnesses and Civil Parties

including Civil Party OM Yoeurn 2 TCCP 274 Civil Party MOM Vun 2 TCCP 283 Civil Party CHOU Koemlan 2 TCCP 238 Civil Party SUN Vuth 2 TCCP 1016 Witness CHANG Srey Mom CHEANG Sreimom 2 TCW 834 Witness PHNEOU Yav 2 TCW

435 See e g T 16 20 September 2016 MOM Vun T 25 August 2016 YOS Phal YUOS Phal T 22 23 August 2016 OM Yoeurn T 26 27 January 2015 CHOU Koemlan T 29 January 2 February 2015 CHEANG Srey Mom 436 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 9 437 See Civil Party Application of DORK Sokin E3 6106 9 July 2009 Summary of Supplementary Information of Civil Party Applicant DORK Sokin D22 864b 19 August 2010 438 See for example T 23 24 August 2016 SOU Sotheavy T 25 August 2016 YOS Phal YUOS Phal T 22 23 August 2016 OM Yoeurn T 20 24 October 2016 PREAP Sokhoeurn T 29 January 2 February 2015 CHANG Srey Mom CHEANG Sreimom T 16 17 February 2015 PHNEOU Yav 439 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 34 440 See Civil Party Application of SENG Thang E3 6127 8 May 2008 Supplementary Information Form of Civil Party Applicant SENG Thang E3 4795 22 June 2010

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441 934 and Witness EK Hoeun UL Hoeun 2 TCW 822 The Chamber therefore decides

not to summons this individual

158 The Lead Co Lawyers also proposed Civil Party TEU Ry 2 TCCP 225 as being a Khmer Muslim direct victim of forced marriage in Kampot Province who could provide

evidence on her transfer to a security centre where she was detained and tortured as

442 punishment for refusing to get married Having reviewed the material on the Case Pile

relevant to this Civil Party and noting the matters on which she is proposed to testily the Chamber notes that her in court statement is mostly relevant to the living conditions and forced labour in Kampot Province after 17 April 1975 She describes her detention conditions at Koh Kyang Prison and being beaten under accusation of having stolen chicken and

potatoes and being forced as a Muslim to eat pork She also describes the killing of 16 other Muslim girls The Chamber finds that while the Civil Party’s supplementary information form

briefly mentions that she was arrested after she refused to marry a Khmer Rouge soldier it is

443 not clear that whether she was arrested for that reason In any event the Chamber finds that

as regards the consequences of refusing to enter into marriage arranged by the Khmer Rouge

her in court statement is likely to be substantially repetitive of evidence heard on these matters in Case 002 02 from several Civil Parties including MOM Vun 2 TCCP 283 SOU Sotheavy 2 TCCP 224 YOS YUOS Phal 2 TCCP 232 OM Yoeurn 2 TCCP 274 and witnesses including CHANG Srey Mom CHEANG Sreimom 2 TCW 834 and VONG

444 Sarun VORNG Sarun 2 TCW 986 The Chamber therefore decides not to summons this

individual

159 Furthermore the summary of HENG Mach’s 2 TCCP 280 proposed evidence

445 describes her forced marriage in Mondulkiri Province in 1973 Having reviewed the

441 See for example T 22 23 August 2016 OM Yoeum T 16 20 September 2016 MOM Vun T 26 27 January 2015 CHOU Koemlan T 30 31 March 2016 SUN Vuth T 29 January 2 February 2015 CHANG Srey Mom CHEANG Sreimom T 16 17 February 2015 PHNEOU Yav T 7 8 May 2015 EK Hoeun 442 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 35 443 See Supplementary Information Form of Civil Party Applicant TEU Ry E3 4875 23 June 2010 Civil Party Application of TEU Ry E3 6336 16 June 2008 Victim Unit’s Report on Civil Party Applicant TEU Ry D22 1721 1 22 January 2010 444 See for example T 16 20 September 2016 MOM Vun T 23 24 August 2016 SOU Sotheavy T 25 August 2016 YOS Phal YUOS Phal T 22 23 August 2016 OM Yoeum T 29 January 2 February 2015 CHANG Srey Mom CHEANG Sreimom T 18 May 2015 VONG Sarun VORNG Sarun 445 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 11

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material on the Case File relevant to the Civil Party446 and noting the matters on which she is

proposed to testify the Chamber notes that the facts to which her evidence relate to concern a

period outside the temporal scope of the ECCC’s jurisdiction The Chamber therefore decides

not to summons this Civil Party

9 4 General Witnesses

160 As noted above the KHIEU Samphan Defence and the NUON Chea Defence proposed a

number of witnesses and experts to testify generally on the trial topic on the Regulation of

Marriage amongst other topics As their proposed testimonies are more closely related to

447 other topics the Chamber will address them in other sections of this decision The Chamber notes that PECH Chim alias Ta Chim 2 TCW 809 testified during the Tram ~~~

448 Cooperatives and Kraing ~~ Chan Security Centre trial topic

449 161 The NUON Chea Defence also proposed Witness TRI Touch 2 TCW 1024 to

450 whom Witness CHEANG Sreymom 2 TCW 834 was allegedly forced to marry According to the NUON Chea Defence given the attention given to the forced marriage of

CHEANG Sreymom and the conflicting evidence heard on the regulation of marriage during

the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre trial topic it was essential to

hear this person The Chamber notes that there is no documentation statement or interview

for this witness In any event in as far as he was proposed to testify on the regulation of

marriage the Chamber notes that it has heard numerous individuals on this trial topic

451 throughout Case002 02 and therefore finds that TRI Touch 2 TCW 1024 ’s testimony is

likely to be substantially repetitive of the evidence heard on these matters by other witnesses

446 See Civil Party Application of HENG Mach E3 4818 18 January 2008 Victim’s Unit Report on Civil Party Applicant HENG Mach D22 1181 1 20 January 2010 447 For the list of individuals proposed by the KHIEU Samphan Defence and the NUON Chea Defence see above paras 146 147 For the relevant analysis see paras 124 126 190 191 194 448 See above para 25 449 Witness TRI Touch 2 TCW 1024 was proposed by the NUON Chea Defence as additional witness pursuant to Internal Rule 87 4 during the Tram ~~~ and Kraing ~~ Chan trial topic At that time the Chamber found it was premature to decide on the request and deferred its decision until such time as considered the witnesses Civil Parties and experts proposed by the Parties for the Regulation of Marriage trial topic See Reasons Following Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre and Decision on SANN Lorn 2 TCW 1007 SOU Phirin 2 TCW 1027 and IV Sarik 2 TCW 1026 E346 2 E346 3 31 March 2016 para 53 NUON Chea’s Consolidated Rule 87 4 Request to Hear Additional Witnesses for the First Case 002 02 Trial Segment on the Tram Kok Cooperatives and Kraing ~~ Chan Security Centre E346 3 April 2015 As a final decision on Internal Rule 87 4 request to hear Witness TRI Touch was not issued the Chamber addresses such request in this decision 450 Witness CHEANG Sreimom 2 TCW 834 was heard during the trial topic on the Trak ~~~ Cooperatives and Kraing ~~ Chan Security Centre see above para 25 451 See above paras 148 150

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and Civil Parties heard on this topic The Trial Chamber therefore decides not to summons

him

10 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR

THE NATURE OF THE ARMED CONFLICT TRIAL TOPIC

162 The Co Prosecutors and Lead Co Lawyers did not specifically propose any witnesses

452 Civil Parties or experts on the Nature of the Armed Conflict

163 In their initial lists the KHIEU Samphan Defence and NUON Chea Defence proposed

that the Chamber hear the following experts and witnesses on a number of topics including

the Nature of the Armed Conflict

10 1 Nature of the Armed Conflict

1 The KHIEU Samphan Defence

1 CHUON Thi 2 TCW 859 2 Philip SHORT 2 TCE 92 3 Michael VICKERY 2 TCE 94 and 453 4 François PONCHAUD 2 TCE 99

2 The NUON Chea Defence

1 CHEA Choeum aka CHEA Chhoem 2 TCW 812 454 2 CHEA Sim 2 TCW 878 3 CHHEM Neang 2 TCW 899 455 4 Richard DUDMAN 2 TCW 923 5 HENG Samrin 2 TCW 831 6 Walter HEYNOWSKI 2 TCW 946 7 Robert LEMKIN 2 TCW 877 8 MEAS Muth 2 TCW 903 9 OUK Bunchhoeun 2 TCW 951 10 PEN Sovann 2 TCW 952 11 THET Sambath 2 TCW 885 12 Nayan CHANDA 2 TCE 83 13 David CHANDLER 2 TCE 84 14 Stephen MORRIS 2 TCE 98

452 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 453 Ordonnance aux fins du dépôt de pièces actualisées dans le cadre de la préparation du procès 002 02 confidential E305 5 2 9 May 2014 pp 1 3 4 6 454 See paras 42 60 455 See para 25

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15 Laura SUMMERS 2 TCW 100 16 Michael VICKERY 2 TCE 94 17 POL Saroeun 2 TCW 962 and 456 18 Roel BURGLER 2 TCE 96

10 2 Findings

164 As noted above the KHIEU Samphan and NUON Chea Defence proposed several

witnesses to testify generally on the Nature of the Armed Conflict among other subjects

However the proposed subject matter of the testimony of many of these witnesses is more

closely related to other trial topics Therefore the Chamber’s analysis on whether to call these witnesses is addressed in other sections of this decision Philip SHORT 2 TCE 92 Roel

BURGLER 2 TCE 96 and David CHANDLER 2 TCE 84 are addressed in the section on

457 proposed experts THET Sambath 2 TCW 885 is addressed in the section on the Role of

458 the Accused MEAS Muth 2 TCW 903 Laura SUMMERS 2 TCE 100 Walter

HEYNOWSKI 2 TCW 946 PEN Sovann 2 TCW 952 HENG Samrin 2 TCW 831

OUK Bunchhoeun 2 TCW 951 POL Saroeun 2 TCW 962 and CHHEM Neang 2 TCW

459 899 are addressed in the section on Security Centres and Internal Purges

165 The Trial Chamber has already rejected the requests to call François PONCHAUD 2

460 461 TCE 99 and Robert LEMKIN 2 TCW 877 and confirmed that Michael VICKERY 2

462 TCE 94 would not testify as an expert in this case

166 The Chamber could not consider summonsing Witness CHEA Choeum aka CHEA

463 Chhoem 2 TCW 812 as he could not be located and is presumed to be deceased

456 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 1 4 6 9 10 12 13 17 20 22 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 pp 2 4 457 See paras 189 194 458 See para 176 459 See paras 104 124 130 137 143 460 The Trial Chamber rejected the requests to call Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 See Decision on Reiterated Request of KHIEU Samphan Defence to Hear Stephen HEDER 2 TCE 87 and François PONCHAUD 2 TCE 99 E408 6 E408 6 2 3 November 2016 461 Decision on NUON Chea Defence Requests to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 Full Reasons confidential E443 10 30 March 2017 462 See Outstanding issues relating to Expert Michael Vickery 2 TCE 94 E408 5 4 August 2016 463 WESU Report Concerning Witness 2 TCW 812 confidential E29 486 5 May 2016

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10 3 Witnesses and Experts heard by the Chamber

167 The Trial Chamber selected and heard the following witnesses and experts in relation to the Nature of the Armed Conflict Stephen MORRIS 2 TCE 98 CHUON Thy CHUON Thi alias THI Ov 2 TCW 859 SOV Maing SAO Champi alias SAO Maing 2 TCW

464 1045 IENG Phan 2 TCW 1046 LONG Sat 2 TCW 1065 SIN Oeng SIN Ung 2

465 TCW 1069 and NONG Nim 2 TCW 1070

168 The Trial Chamber had initially selected Nayan CHANDA 2 TCE 83 and KHUN Kim

466 alias NUON Paet 2 TCW 8 1 0 to testify in relation to the Nature of the Armed Conflict

However on 15 August 2016 the Trial Chamber informed the parties that NAYAN Chanda

2 TCE 83 had indicated that he was unavailable to testify for the remainder of 2016 and

467 early 2017 The Chamber therefore withdraws NAYAN Chanda 2 TCE 83 from the list

of selected experts as it would be impossible to obtain his testimony within a reasonable

time In addition KHUN Kim 2 TCW 810 was unable to testify due to a serious health

468 condition The Trial Chamber therefore withdraws him from the list of selected

469 witnesses and decides that he shall not be called to testify

169 In total the Trial Chamber heard 6 witnesses and 1 expert during the trial segment

allocated to the Nature of the Armed Conflict

464 SOV Maing SAO Champi alias SAO Maing 2 TCW 1045 IENG Phan 2 TCW 1046 LONG Sat 2 TCW 1065 were not proposed by the Parties but were independently selected by the Trial Chamber to testify in relation to the Nature of the Armed Conflict The Chamber selected these witnesses having regard to the content of their prior statements and or interviews 465 Sin Oeng SIN Ung 2 TCW 1069 and NONG Nim 2 TCW 1070 were selected by the Trial Chamber to testify in relation to the Nature of the Armed Conflict following a request by the NUON Chea Defence to call two additional witnesses see Decision on NUON Chea Defence Request E448 to call two additional witnesses E448 2 14 December 2016 466 While KHUN Khim alias Nuon Paet 2 TCW 810 was selected by the Trial Chamber to testify with respect to the Nature of the Armed Conflict he was initially proposed by the Co Prosecutors to testify with respect to the Role of the Accused Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 1 467 See Email from Trial Chamber Legal Officer confidential 15 August 2016 WESU Report on 2 TCE 83 E29 492 8 September 2016 468 See Medical Assessment Report for Witness 2 TCW 810 strictly confidential E29 495 1 11 October 2016 469 See Summons to witness KHUN Kim alias NUON Paet confidential E202 298 15 August 2016

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11 PROPOSED WITNESSES CIVIL PARTIES AND EXPERTS FOR

THE ROLE OF THE ACCUSED TRIAL TOPIC

170 The Parties proposed that the Chamber hear the following witnesses Civil Parties and

experts on the Role of the Accused

11 1 Role of the Accused

1 The Co Prosecutors

1 LONH Dos 2 TCW 942 2 THET Sambath 2 TCW 885 3 YEN Kuch 2 TCW 871 4 BIT Na 2 TCW 953 5 KHUN Kim alias NUON Paet 2 TCW 810 6 OU Dav 2 TCCP 235 7 SON Em 2 TCCP 223 8 SAR Sarin 2 TCCP 237 9 MA Chhoeun MAK Chhoeun 2 TCW 823 10 NONG Net NORNG Net 2 TCW 913

11 SUON Ri 2 TCW 856 reserve witness and 470 12 SENG Lytheng alias THENG reserve witness 2 TCW 897

2 The Lead Co Lawyers

1 HEM Savann 2 TCCP 250 2 HOENG Neng 2 TCCP 253 3 THEAV KHIEV Neab 2 TCCP 258 4 NEOU Sarem 2 TCCP 268 5 SAR Sarin 2 TCCP 237 6 SENG Soeun 2 TCCP 219 and 471 7 OU Dav 2 TCCP 235

3 The NUON Chea Defence

1 CHEY Sopheara alias MAO 2 TCW 814 2 CHHANG Youk 2 TCW 870 3 CHHEM Neang 2 TCW 899 4 HENG Samrin 2 TCW 831 5 Walter HEYNOWSKI 2 TCW 946 6 KAING Guek EAV alias DUCH 2 TCW 916 7 Robert LEMKIN 2 TCW 877

470 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 1 471 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 p 3

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8 THET Sambath 2 TCW 885 9 Nayan CHANDA 2 TCE 83 10 David CHANDLER 2 TCE 84 11 Stephen MORRIS 2 TCE 98 12 Laura SUMMERS 2 TCE 100 13 Michael VICKERY 2 TCE 94 14 POL Saroeun 2 TCW 962 and 472 15 YIN Nean 2 TCW 963

171 The KHIEU Samphan Defence did not specifically propose any witnesses Civil Parties

473 or experts on the Role of the Accused

11 2 Witnesses and Civil Parties heard by the Chamber

172 The Trial Chamber selected and heard the following witnesses and Civil Parties in relation to the Role of the Accused trial topic BEIT Boeum BIT Na alias BIT Beuan 2

TCW 953 NORNG Net NONG Net 2 TCW 913 OU Dav 2 TCCP 235 SON Em 2

TCCP 223 SENG Lytheng alias Theng 2 TCW 897 KHIEV Neab THEAV KHIEV

474 Neab 2 TCCP 258 THUCH Sithan 2 TCW 842 NHOEK Ly 2 TCW 920 PREAP

475 Chhon PREAP Chhouen 2 TCCP 1063 and MAK Chhoeun MA Chhoeun 2 TCW

823

173 In total the Trial Chamber heard 6 witnesses and 4 Civil Parties during the trial segment

allocated to the Role of the Accused

472 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 2 7 9 14 17 20 22 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 pp 2 3 473 Ordonnance aux fins du dépôt de pièces actualisées dans le cadre de la préparation du procès 002 02 confidential E305 5 2 9 May 2014 474 While THUCH Sithan 2 TCW 842 and NHOEK Ly 2 TCW 920 were selected by the Trial Chamber to testify with respect to the Role of the Accused they were initially proposed by the Co Prosecutors to testify with respect to Internal Purges Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 1 475 PREAP Chhon PREAP Chhouen 2 TCCP 1063 was selected by the Trial Chamber to testify with respect to the Role of the Accused following a request by the International Co Prosecutor to call an additional Civil Party to testify on this trial topic See Decision on the International Co Prosecutor’s Request to hear an Additional Civil Party on the Role of the Accused and for Admission of Related Statement confidential E436 1 17 October 2016

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11 3 Unable or unwilling to testify

174 The Trial Chamber had initially selected YEN Kuch 2 TCW 871 to testify in relation

to the Role of the Accused However on 6 December 2016 the Trial Chamber informed the

Parties that YEN Kuch 2 TCW 871 was unable to testify due to a serious health condition

476 and would be replaced by MAK Chhoeun MA Chhoeun 2 TCW 823 The Trial

Chamber ruled that LONH Dos 2 TCW 942 was unable to testify due to his serious health

477 condition and would thus not be selected

175 Civil Party SAR Sarin 2 TCCP 237 was selected to give evidence with respect to the

Role of the Accused and commenced his in court statement on 8 November 2016 At the start

of the hearing SAR Sarin 2 TCCP 237 informed the Trial Chamber for the first time that

due to high blood pressure he preferred to be heard only for half days Following an

examination of the Civil Party the ECCC doctor concluded that he was in good and health

and that he was fit to be questioned for full day sessions Questioning of SAR Sarin 2 TCCP

237 was due to resume on 10 November 2016 However he informed WESU that he was

feeling unwell and was taken to a medical clinic for a check up While the results did not

indicate any medical issue SAR Sarin 2 TCCP 237 insisted that he needed to rest and was thus taken back to his hotel Later that morning when WESU called to enquire about the

health of the Civil Party SAR Sarin 2 TCCP 237 they were informed that he left the hotel to return to his home town SAR Sarin 2 TCCP 237 subsequently demanded relocation to

another country as a condition for continuing to give evidence The Trial Chamber denied this

request for relocation and ruled that given that SAR Sarin 2 TCCP 237 was a Civil Party he

478 could not be compelled to testify The Trial Chamber therefore withdrew SAR Sarin 2

TCCP 237 from the list of witnesses Civil Parties and experts for the trial topic on the Role

479 of the Accused As the Trial Chamber decides to no longer seek to hear the remainder of

476 See Email from Trial Chamber Legal Officer 6 December 2016 Summons to Witness Yen Kuch ” confidential E202 319 13 October 2016 Medical Report of Reserve Witness YEN Kuch 2 TCW 871 El 501 5 22 November 2016 strictly confidential 477 Decision on the Testimony of Witness 2 TCW 942 confidential E29 494 2 7 December 2016 Medical Assessment report for witness 2 TCW 942 strictly confidential E29 494 1 22 November 2016 See also Email from Senior Legal Officer of 14 September 2016 478 Decision Withdrawing 2 TCCP 237 from the List of Civil Parties Heard in Court confidential E29 501 1 14 December 2016 479 Decision Withdrawing 2 TCCP 237 from the List of Civil Parties Heard in Court confidential E29 501 1 14 December 2016

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his evidence it will consider the submissions of the Parties in determining what weight if any

480 to attribute to the evidence already provided by SAR Sarin 2 TCCP 237

176 On 7 May 2015 the Trial Chamber granted the Co Prosecutors’ request to call THET

481 Sambath 2 TCW 885 and instructed WESU to contact the witness in this regard On 28 May 2015 WESU reported that they discussed the possibility of remote testimony via video-

link with THET Sambath 2 TCW 885 who lives in the United States of America However

THET Sambath 2 TCW 885 stated that he would be unable to make himself available for

testimony citing security concerns he had for himself and others He further stated that the

protective mechanisms offered by the ECCC could not ensure their continued safety THET

Sambath 2 TCW 885 also noted that he would be unable to answer questions during his

testimony because he obtained information from other persons who “have not agreed for their

material to be used in any other form or for any other purpose than for the production of his

films” and that he had “promised these persons to protect their information and it would be a

482 violation of that promise were he to testify” The Chamber notes that THET Sambath 2 TCW 885 would largely be able to only provide hearsay evidence pertaining to those

individuals who were interviewed for the purposes of his work The Trial Chamber has

already made attempts to secure the testimony of witnesses who might be relevant to THET

483 Sambath’s work including CHEAL Choeun 2 TCW 960 who testified in this case Having regard to these factors the proposed content of his testimony and the serious practical

difficulties it would face in seeking to compel a witness who resides outside Cambodia to

484 testify within a reasonable time the Trial Chamber decides not to summons THET

Sambath 2 TCW 885 to testify in this case

480 Co Prosecutors’ Submission Regarding Admissibility of Testimony of SAR Sarin E453 20 December 2016 Conclusions de la Défense de KHIEU Samphân sur l’utilisation des declarations de la partie civile SAR Sarin E453 1 20 December 2016 Civil Party Lead Co Lawyers’ Submission on the use of testimony by Civil Party 2 TCCP 237 E453 2 20 December 2016 T 7 December 2016 Draft pp 33 54 481 Decision on Co Prosecutors’ Request to call THET Sambath as a priority witness E335 3 7 May 2015 482 Updated report in response to Trial Chamber Decision E335 3 E335 3 2 confidential 28 May 2015 See also Email from Trial Chamber Legal Officer E335 1 1 1 1 12 June 2015 On 21 October 2015 the Supreme Court Chamber denied an additional evidence request by the NUON Chea Defence to summon THETH Sambath to testify Decision on Pending Requests for Additional Evidence on Appeal and Related Matters F2 9 21 October 2015 483 Decision on NUON Chea Defence Requests to hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 Full Reasons E443 10 confidential 30 March 2017 paras 30 41 T 13 and 17 October 2016 CHEAL Choeun 484 See Decision Withdrawing Witness 2 TCW 890 from the List of Witnesses Civil Parties and Experts for Case 002 02 E202 322 3 confidential 9 December 2016 The Supreme Court Chamber has acknowledged the ECCC’s weak enforcement powers with respect to non cooperative witnesses Case 002 01 Appeal Judgement F36 23 November 2016 para 123

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177 Witness SUON Ri 2 TCW 856 was proposed as a reserve witness for this trial topic

During the initial selection process the Chamber requested WESU to make a preliminary assessment of the health and availability of this witness However when WESU tried to contact SUON Ri 2 TCW 856 he attempted to obfuscate his identity went into hiding and

485 refused to co operate with WESU or the ECCC The Chamber finds that obtaining his

testimony appears to be impossible within a reasonable time and decides not to summons

SUON Ri 2 TCW 856 In any event the Chamber finds that SUON Ri 2 TCW 856 ’s

proposed evidence in so far it relates to the Role of the Accused appears to be limited to

486 Khieu Samphan’s visits to the warehouses under the authority of the Ministry of Commerce

and notes that BEIT Boeurn BIT Na 2 TCW 953 also testified about her work in and the

structure of the Ministry of Commerce and KHIEU Samphan’s involvement in study sessions

487 she attended The remainder of SUON Ri 2 TCW 856 ’s evidence is likely to be

substantially repetitive of evidence already heard on Security Centres and Internal Purges in

488 Case 002 02 from several witnesses and Civil Parties Considering SUON Ri 2 TCW 856 ’s unwillingness to testify and the content of his proposed evidence the Chamber

declines to summons him

11 4 Repetitive and or Irrelevant and or Less Relevant

11 4 1 Individuals proposed by the Lead Co Lawyers

178 The Lead Co Lawyers proposed Civil Parties HEM Savann 2 TCCP 250 HOENG Neng 2 TCCP 253 and NEOU Sarem 2 TCCP 268 and SENG Soeun 2 TCCP 219 to

489 testify on the Role of the Accused

179 According to the summary of the proposed evidence HEM Savann 2 TCCP 250 was

an eye witness to KHIEU Samphan distributing “green kramas” at Khbal Thnal in Phnom

Penh in order to identify people from the East Zone and was also the direct victim of forced

490 marriage in Svay Rieng Province The Chamber notes that her evidence so far as it relates

485 Witness and Expert Support unit WESU Report on 2 TCW 856 confidential E29 510 11 July 2017 486 Annex IIIA OCP Updated Alternate Witness Civil Party and Expert Summaries [Reserves] E305 6 5 9 May 2014 p 3 487 See T 28 November 2016 488 See paras 105 144 489 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 10 12 18 19 490 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 10 11

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491 to the movement of population phase 3 does not fall within the scope of Case 002 02 In

addition her evidence on KHIEU Samphan’s involvement in meeting people from the East Zone and in the distribution of clothes including kramas is likely to be substantially repetitive

of the evidence heard in Case 002 02 on this issue from inter alia KHIEV Neab

THEAV KHIEV Neab 2 TCCP 258 and PREAP Chhon PREAP Chhouen 2 TCCP

492 1063 The remainder of her evidence on forced marriage is likely to be substantially

repetitive of evidence heard on the Regulation of Marriage in Case 002 02 from several

493 witnesses and Civil Parties

180 According to the summary of the proposed evidence HOENG Neng 2 TCCP 253 was

an eyewitness to KHIEU Samphan’s visit to Pursat and saw him giving “green kramas” to

people who were moved from Svay Rieng In addition the Lead Co Lawyers submit that

HOENG Neng 2 TCCP 253 will explain the propaganda where the Accused “appeared as

494 leaders” of the Democratic Kampuchea HOENG Neng 2 TCCP 253 mentioned KHIEU

Samphan’s involvement in distributing supplies and green scarves which identified people

from the East HOENG Neng 2 TCCP 253 also noted that they were required to watch

documentary screenings on the regime which included propaganda on achievements of the

495 leadership including KHIEU Samphan and NUON Chea Having regard to the peripheral and passing reference to KHIEU Samphan and NUON Chea the Trial Chamber finds that her

evidence is of limited relevance with respect to the Role of the Accused In addition her

evidence on KHIEU Samphan’s involvement in meeting people from the East zone and in the distribution of clothes including kramas is likely to be substantially repetitive of the evidence

heard in Case 002 02 on this issue from KHIEV Neab THEAV KHIEV Neab 2 TCCP 258

496 and PREAP Chhon PREAP Chhouen 2 TCCP 1063 The Chamber notes that her

evidence so far as it relates to the movement of population phase 3 does not fall within the

497 scope of Case 002 02

491 See Decision on Additional Severance of Case 002 and Scope of Case 002 02 E301 9 1 4 April 2014 para 37 492 See T 29 November 2016 KHEAV Neab T 30 November 2016 PREAP Chhon See also E3 5894 Civil Party Application of MEAS Soeum confidential 2 TCW 917 ERN 00339165 E3 5234 Written Record of Interview of CHAK Muli confidential ERN 00288202 00288203 493 See Regulation of Marriage section 494 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 p 11 495 Supplementary Information of Civil Party Applicant confidential E3 6000a 18 March 2010 p 2 3 496 See T 29 November 2016 KHEAV Neab T 30 November 2016 PREAP Chhon 497 See Decision on Additional Severance of Case 002 and Scope of Case 002 02 E301 9 1 4 April 2014 para 37

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181 With respect to NEOU Sarem 2 TCCP 268 the summary of proposed evidence notes

that she was forced to attend a seminar led by KHIEU Samphan in Phnom Penh for

“returnees” where KHIEU Samphan spoke about the Khmer Rouge policies on the establishment of cooperatives and worksites and the production of rice KHIEU Samphan

allegedly also spoke about the virtue of the farmer and worker class as opposed to the intellectuals and the plan to send the Vietnamese back to Vietnam because of their inability to

498 contribute to the agrarian goals of the new state

182 The Chamber further reviewed the Voice of America transcript of interview of NEOU

499 Sarem 2 TCCP 268 referred to in her Civil Party application In the interview NEOU

Sarem 2 TCCP 268 spoke about attending an education session where KHIEU Samphan

came to teach KHIEU Samphan spoke about the importance of the farmer and worker class to the revolution the weakness of the intellectuals and the plan to send the Vietnamese back

500 to Vietnam because they did not know how to farm

183 The Trial Chamber in Case 002 01 declined to hear NEOU Sarem 2 TCCP 268 in light of the significant quantity of evidence before the Chamber in relation to alleged role of the

501 Accused in political education The Chamber similarly finds that the in court statement of

NEOU Sarem 2 TCCP 268 in case 002 02 is likely to be substantially repetitive of the

evidence heard on the Role of the Accused in Case 002 02 from inter alia BEIT Boeurn BIT

Na alias BIT Beuan 2 TCW 953 NORNG Net NONG Net 2 TCW 913 SON Em 2

TCCP 223 and SENG Lytheng alias Theng 2 TCW 897 who also testified about the

502 involvement of the Accused in education or study sessions

498 Confidential Annex III Updated Summaries of Witnesses Civil Party and Experts no protective measures sought Civil Party Lead Co Lawyers E305 7 1 3 9 May 2014 pp 18 19 499 See Transcript of Voice of America Khmer Service Interview with NEOU Sarem confidential E3 6934 29 May 2015 E231 1 10 January 2013 500 See Transcript of Voice of America Khmer Service Interview with NEOU Sarem E3 6934 29 May 2015 pp 9 12 While the summary of the proposed evidence suggested that KHIEU Samphan also spoke about the establishment of co operatives the transcript of her interview with Voice of America notes that this particular education session was not taught by KHIEU Samphan 501 Final Decision on Witnesses Experts and Civil Parties to be heard in Case 002 01 E312 7 August 2014 paras 53 54 502 See T 28 November 2016 BEIT Boeurn T 10 November 2016 NORNG Net T 21 22 November 2016 SON Em T 29 November 2016 SENG Lytheng The Chamber also heard evidence on this issue from a number of witnesses who testified in Case 002 01 See CHEA Say TCW 91 El 124 1 EK Hen TCW 164 El 217 1 RUOS Suy TCW 570 El 184 1

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184 Therefore the Trial Chamber will not call HEM Savann 2 TCCP 250 HOENG Neng

2 TCCP 253 and NEOU Sarem 2 TCCP 268 The Trial Chamber notes that SENG Soeun

503 2 TCCP 219 was heard during the Regulation of Marriage trial topic

11 5 General witnesses

185 The Parties proposed several witnesses to testify generally on the Role of the Accused

among other subjects However the proposed subject matter of the testimony of many of

these witnesses is more closely related to other trial topics Therefore the Chamber’s analysis

on whether to call these witnesses is addressed in other sections of this decision David

CHANDLER 2 TCE 84 is addressed in the section on proposed experts KHUN Kim alias

NUON Paet 2 TCW 810 and Nayan CHANDA 2 TCE 83 are addressed in the section on the Nature of the Armed Conflict CHEY Sopheara alias MAO 2 TCW 814 YIN Nean 2

TCW 963 Laura SUMMERS 2 TCE 100 Walter HEYNOWSKI 2 TCW 946 HENG

Samrin 2 TCW 831 POL Saroeun 2 TCW 962 and CHHEM Neang 2 TCW 899 are

addressed in the section on Security Centres and Internal Purges CHHANG Youk 2 TCW 870 is addressed in the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre section

KAING Guek EAV alias DUCH 2 TCW 916 was heard during the Security Centres and

Internal Purges trial topic504 and Stephen MORRIS 2 TCE 98 was heard during the Nature 505 of the Armed Conflict trial topic

186 The Trial Chamber has already rejected the request to call Robert LEMKIN 2 TCW

506 87 7 an j confjrmecj that Michael VICKERY 2 TCE 94 would not testify as an expert in

507 this case

12 PROPOSED EXPERTS

187 The Co Prosecutors the Lead Co Lawyers the NUON Chea Defence and the KHIEU

Samphan Defence proposed that the Chamber hear the following experts in Case 002 02

503 See para 148 504 See para 97 505 See para 167 506 Decision on NUON Chea Defence Requests to Hear Additional Witnesses Pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 Full Reasons confidential E443 10 30 March 2017 507 See Outstanding issues relating to Expert Michael Vickery 2 TCE 94 E408 5 4 August 2016

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a The Co Prosecutors

1 HARRIS Ian 2 TCE 86 2 LOCARD Henri 2 TCE 90 3 BECKER Elizabeth 2 TCE 97 4 ETCHESON Craig 2 TCE 85 5 BLENGSLI Bjorn 2 TCE 91 6 TABEAU Ewa Maria 2 TCE 93 7 HINTON Alexander 2 TCE 88 8 NAKAGAWA Kasumi 2 TCE 82

9 KIERNAN Ben reserve 2 TCE 89 508 10 YSA Osman 2 TCE 95

b The Lead Co Lawyers

1 HINTON Alexander Laban 2 TCE 88 509 2 NAKAGAWA Kasumi 2 TCE 82

c The NUON Chea Defence

1 CHANDA Nayan 2 TCE 83 2 CHANDLER David Porter 2 TCE 84 3 ETCHESON Craig 2 TCE 85 4 MORRIS Stephen John 2 TCE 98 5 SUMMERS Laura J 2 TCE 100 6 TABEAU Ewa Maria aka TABEAU KOWALSKA Ewa Maria 2 TCE 93 7 VICKERY Michael 2 TCE 94 510 8 BURGLER Roel A 2 TCE 96

d The KHIEU Samphan Defence

1 LEVINE Peg 2 TCE 81 2 PONCHAUD Francois 2 TCE 99 3 VICKERY Michael 2 TCE 94 4 HEDER Stephen 2 TCE 87 5 BURGLER Roel A 2 TCE 96 511 6 SHORT Philip 2 TCE 92

508 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 pp 1 2 509 Confidential Annex IV Proposed Order of Segments Civil Parties Lead Co Lawyers E305 7 1 4 9 May 2014 p 4 510 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 17 23 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 p 4 511 Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection E305 5 2 9 May 2014 pp 2 6

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188 In total the Trial Chamber heard 8 experts during the trial in Case 002 02 specifically Peg LEVINE 2 TCE 81 Henri LOCARD 2 TCE 90 Elizabeth BECKER 2 TCE 97 Alexander Laban HINTON 2 TCE 88 Kasumi NAKAGAWA 2 TCE 82 Stephen John

MORRIS 2 TCE 98 YSA Osman 2 TCE 95 as well as VOEUN Vuthy 2 TCE 1062

512 who was proposed by the NUON Chea Defence in a separate fding

189 The Trial Chamber notes that the proposed testimony of the following four experts is closely related to the subject matter of specific trial topics and the reasoning for not calling them is therefore addressed under those sections of this decision Nayan CHANDA 2 TCE

513 514 515 83 Laura J SUMMERS 2 TCE 100 Bjorn BLENGSLI 2 TCE 91 and David

516 CHANDLER 2 TCE 84

12 1 Findings

190 The Chamber recalls that Ian Charles HARRIS 2 TCE 86 is deceased517 and that it has

already issued its reasons for not hearing Stephen HEDER 2 TCE 87 and François

518 PONCHAUD 2 TCE 99 The Chamber notes that efforts were made to hear proposed

experts Michael VICKERY 2 TCE 94 and Ben KIERNAN 2 TCE 89 but they both

519 refused to testify before the ECCC The Chamber recalls that it has few practical means at

its disposal to compel the attendance of an uncooperative expert residing abroad within a

520 reasonable time In view of the proposed experts’ refusal to assist the court the Chamber

521 decides not to hear their evidence in Case 002 02

191 The NUON Chea Defence requested that Ewa Maria TABEAU 2 TCE 93 be called to

testify regarding “inter alia the number and causes of alleged deaths in the DK” while the

512 See Decision on the Admission into Evidence of the Choeung Ek Study E404 4 23 May 2016 para 7 Decision on the Designation of 2 TCE 1062 E404 8 4 November 2016 NUON Chea’s Observations on the Admissibility of the Choeung Ek Bone Study and Its External Evaluation E404 2 with annexes 12 May 2016 para 24 513 See para 168 514 See para 143 515 See para 85 516 See para 142 517 See para 28 518 Decision on Reiterated Request of KHIEU Samphan Defence to Hear Stephen HEDER 2 TCE 87 and Francois PONCHAUD 2 TCE 99 E408 6 E408 6 2 3 November 2016 519 Outstanding Issues Relating to Expert Michael VICKERY 2 TCE 94 E408 5 4 August 2016 Email from KIERNAN Ben 2 TCE 89 to WESU dated 23 December 2015 E29 509 Email from KIERNAN Ben 2 TCE 89 to the Trial Chamber dated 12 September 2016 E29 509 1 520 Proposed testimony of Benedict KIERNAN before the Trial Chamber El 66 1 4 13 June 2012 p 2 521 The Chamber notes that it has previously confirmed that Michael VICKERY 2 TCE 94 would not testify as an expert See Outstanding Issues Relating to Expert Michael VICKERY 2 TCE 94 E408 5 4 August 2016

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Co Prosecutors submitted that her testimony is relevant to Historical Background Movement

522 of the Population Treatment of the Cham and Treatment of the Vietnamese Both Parties

submitted that her expert qualifications stem inter alia from having co authored a

523 demographic expert report submitted to the ~~ Investigating Judges on 30 September 2009 The Chamber recalls that it initiated contact with Ewa Maria TABEAU 2 TCE 93 through WESU to determine her availability for testifying She responded that she required several

524 months in order to update her expert report Consequently the Chamber requested oral

submissions from the Parties with respect to the requests by the NUON Chea Defence and the

525 Co Prosecutors to hear this expert All the Parties agreed that it was no longer necessary to hear Ewa Maria TABEAU 2 TCE 93 with the KHIEU Samphan Defence emphasizing that

she could not be considered an expert and the NUON Chea Defence requesting instead that

526 Patrick HEUVELINE testify as a demographic expert On 13 September 2016 the

Chamber informed the Parties that Ewa Maria TABEAU 2 TCE 93 would not be called to

testify in Case 002 02 and on 6 December 2016 it issued its decision denying the request to

527 call Patrick HEUVELINE In the latter decision the Chamber noted that the absence of

relevant and reliable statistical data for the purposes of assessing a precise number of deaths

attributable to the DK regime leads to inherent uncertainty surrounding the use of

528 demographic evidence It also found that determining a precise number of deaths during the

DK period is not necessary for determining the alleged criminal liability of the Accused in

529 this case Keeping in mind these findings which in this context apply to all demographic

experts and noting that the Parties agree it is no longer necessary to call Ewa Maria TABEAU 2 TCE 93 the Chamber concludes that hearing her would not assist the Chamber

in establishing legally relevant facts in this case The Chamber therefore declines to summons

her

522 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 21 22 Annex III OCP Updated Witness Civil Party and Expert Summaries E305 6 4 9 May 2014 p 47 523 Demographic Expert Report E3 2413 30 September 2009 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 21 22 Annex III OCP Updated Witness Civil Party and Expert Summaries E305 6 4 9 May 2014 p 47 524 See Request for Oral Submissions on Parties’ Requests to hear testimony of Ewa Tabeau E371 2 29 August 2016 525 Request for Oral Submissions on Parties’ Requests to hear testimony of Ewa Tabeau E371 2 29 August 2016 526 T 1 September 2016 pp 21 48 See also Decision on NUON Chea’s Request to Summons Patrick Heuveline and to Admit Two Related Documents E444 1 6 December 2016 “Patrick Heuveline Decision” paras 2 5 527 Email from Trial Chamber to the Parties dated 13 September 2016 Patrick Heuveline Decision 528 Patrick Heuveline Decision para 22 529 Patrick Heuveline Decision para 21

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192 In their request to call Craig ETCHESON 2 TCE 85 the Co Prosecutors described

him as an “overview” expert while the NUON Chea Defence considered his expertise relevant to the structure conditions operations and roles of individuals at the S 21 Security

530 Centre The Chamber recalls that Craig ETCHESON 2 TCE 85 testified in Case 001 as

an expert on “Democratic Kampuchea military structure the political and governmental structure of the Khmer Rouge the communications network and the policy and ideology of

531 the Khmer Rouge” The Chamber notes that Craig ETCHESON 2 TCE 85 ’s testimony from Case 001 which includes several references to the S 21 Security Centre is admitted into

evidence in Case 002 02 as are his book and his Written Record of Analysis prepared for the

532 ECCC Furthermore expert Alexander Laban HINTON 2 TCE 88 testified inter alia on

the operation of S 21 while Elizabeth BECKER 2 TCE 97 provided an overview of the

533 history of the CPK and the DK regime The Chamber therefore finds that Craig ETCHESON 2 TCE 85 ’s evidence is likely to be substantially repetitive of evidence before

the Chamber in Case 002 02 The Chamber therefore declines to summons him

193 The KHIEU Samphan Defence requested Philip SHORT 2 TCE 92 to testify as an

534 expert on the pre 1975 history of the CPK and its institutional organization The Chamber

notes that Philip SHORT 2 TCE 92 testified as an expert in Case 002 01 in relation to

events prior to 1975 and that his testimony forms part of the significant amount of

535 documentary evidence pertaining to this subject matter that was admitted in Case 002 02

The Chamber notes that Philip SHORT 2 TCE 92 was among the experts proposed prior to

the severance of Case 002 and it therefore allowed for more extensive questioning within his

536 unique area of expertise in order to avoid recalling him unnecessarily The Chamber

therefore considers that hearing Philip SHORT 2 TCE 92 ’s evidence a second time is likely

to be substantially repetitive of evidence on the Case File including the Case 002 01

530 Annex I Co Prosecutors’ Revised Combined Witness Civil Party and Expert List for Case 002 02 in Recommended Order of Trial Segments and Appearance July 2014 confidential E307 3 2 2 28 July 2014 p 2 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 p 19 531 Decision Concerning the Assignment of Experts D288 6 51 23 April 2009 para 4 532 See Case 001 Trial Transcripts Craig ETCHESON E3 345 18 May 2009 E3 2981 19 May 2009 E3 2982 20 May 2009 E3 55 21 May 2009 Craig ETCHESON The Rise and Demise of the Democratic Kampuchea E3 2113 Written Record of Analysis by Craig Etcheson E3 494 18 July 2007 E3 1813 533 See T 14 March 2016 Alexander HINTON T 15 March 2016 Alexander HINTON T 9 February 2015 Elizabeth BECKER T 10 February 2015 Elizabeth BECKER 534 Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection E305 5 2 9 May 2014 p 3 535 See T 6 May 2013 Philip SHORT 536 Decision on Experts E215 5 July 2012 para 4

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testimonies of Francois PONCHAUD 2 TCE 99 Stephen HEDER 2 TCE 87 and David

537 CHANDLER 2 TCE 84 The Chamber therefore declines to summons him

194 The NUON Chea Defence proposed Roel A BURGLER 2 TCE 96 as an expert on the

CPK history and events during the DK including concerns about the “ambitions of Vietnam”

538 as well as on the pre 1975 history of the CPK The KHIEU Samphan Defence requested

this expert to testify primarily on the hierarchical relations between leaders of the DK regime

539 notably on the degree of autonomy held by local commanders As noted above significant

amount of documentary evidence pertaining to pre 1975 conditions is already on the Case

File Further other experts and witnesses testified in Case 002 02 on the background and

540 hierarchy of the CPK and its relations with Vietnam The Chamber has reviewed the

material on the Case File relevant to Roel A BURGLER 2 TCE 96 notably his publication

541 The Eyes of the Pineapple which is admitted into evidence in Case 002 02 and considers

his proposed testimony to be substantially repetitive of evidence on the Case File including

the testimonies of experts Elizabeth BECKER 2 TCE 97 and Stephen John MORRIS 2

542 TCE 98 The Chamber therefore declines to summons him

13 INDIVIDUALS ON WHOM NO CONSENSUS COULD BE

REACHED

195 As stated above the Chamber was unable to reach a consensus on whether to summons

Witnesses HENG Samrin 2 TCW 831 POL Saroeun 2 TCW 962 and OUK Bunchhoeun

537 See Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 E312 7 August 2014 para 31 T 6 9 May 2013 Philip SHORT T 9 11 April 2013 Francois PONCHAUD T 9 11 15 18 July 2013 Stephen HEDER T 19 20 23 25 July 2013 David CHANDLER The Chamber notes that the KHIEU Samphan Defence proposed this expert in relation to several trial topics and finds that his testimony is likely to be substantially repetitive of evidence heard on those topic by the Chamber in Case 002 02 see above paras 25 39 43 58 68 86 93 143 164 168 538 Confidential Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought Nuon Chea Defence Team E305 4 2 8 May 2014 pp 17 23 Confidential Annex ~ New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team E307 4 3 24 July 2014 p 4 539 Annexe III Résumés actualisés des déclarations des témoins et des experts qui ne demandent l’octroi d’aucune mesure de protection E305 5 2 9 May 2014 p 2 540 See e g T 15 March 2016 Alexander HINTON T 16 March 2016 Alexander HINTON T 31 October 2016 IENG Phan T 25 October 2016 CHUON Thy T 26 October 2016 CHUON Thy 541 Attachment 17 Roeland A Burgler “The Eyes of the Pineapple Revolutionary Intellectuals and Terror in Democratic Kampuchea” E3 7333 542 See T 9 February 2015 Elizabeth BECKER T 10 February 2015 Elizabeth BECKER T 11 February 2015 Elizabeth BECKER T 18 October 2016 Stephen MORRIS T 19 October 2016 Stephen MORRIS T 20 October 2016 Stephen MORRIS The Chamber notes that both the KHIEU Samphan Defence and the NUON Chea Defence proposed this expert in relation to several trial topics and finds that his testimony is likely to be substantially repetitive of evidence heard on those topic by the Chamber in Case 002 02 see above paras 25 39 43 58 68 86 93 143 164 168

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2 TCW 951 As an affirmative majority as required by Article 14 l a new of the Law on

the ECCC was not reached these three witnesses were not summonsed The opinions of the majority and minority follow

13 1 Procedural History

196 During the investigations in Case 002 the International ~~ Investigating Judge issued

summonses to HENG Samrin 2 TCW 831 and OUK Bunchhoeun 2 TCW 951 amongst

543 other individuals for the purpose of interviewing them as witnesses Both individuals failed to respond and the International ~~ Investigating Judge concluded that they refused to attend

for testimony He also noted that implementing any coercive measures would be “fraught with

significant practical difficulties” that in “the best case scenario would unduly delay the

544 conclusion of the judicial investigation contrary to the need for expeditiousness” The International ~~ Investigating Judge therefore decided to defer to the Trial Chamber to decide

545 whether employing any coercive measures would be warranted The matter was appealed before the Pre Trial Chamber which criticised the reasoning of the International Co Investigating Judge but agreed with the conclusion that the matter should be deferred to the

546 Trial Chamber

197 The NUON Chea Defence proposed HENG Samrin 2 TCW 831 and OUK

Bunchhoeun 2 TCW 951 as witnesses for the purposes of the trial proceedings in Case 002

547 in June 2011 In Case 002 01 no consensus could be reached amongst the Judges of the

Trial Chamber on whether to summons them In their minority opinion at the time the International Judges Lavergne and Cartwright disagreed with the majority’s conclusion not to

summons HENG Samrin 2 TCW 831 and OUK Bunchhoeun 2 TCW 951 and found that

their proposed evidence was prima facie relevant and that therefore they should have been

548 summonsed

543 Witness Summons D136 3 1 25 September 2009 Witness Summons A298 1 25 September 2009 Note by the ~~ Investigating Judge confidential D301 11 January 2010 p 3 544 Note by the ~~ Investigating Judge confidential D301 11 January 2010 p 3 545 Note by the Investigating Judge confidential D301 11 January 2010 pp 3 4 546 Decision on NUON Chea’s and IENG Sary’s Appeal Against OCIJ Order on Request to Summons Witnesses confidential D314 2 7 8 June 2010 para 71 547 Updated Lists and Summaries of Proposed Witnesses Civil Parties and Experts E305 4 2 8 May 2014 New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team confidential E307 4 3 07 July 2014 548 Final Decision on Witnesses Experts and Civil Parties to Be Heard in Case 002 01 E312 7 August 2014 paras 104 111

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198 The Supreme Court Chamber in its Appeal Judgement in Case 002 01 concluded that

the Trial Chamber committed an error in not summonsing these two witnesses However it

did not decide to redress such error by calling the said witnesses and found instead that this

549 error did not result in a “grossly unfair outcome in the judicial proceedings”

199 In Case 002 02 the NUON Chea Defence submitted its updated list of witnesses Civil

Parties and experts on 8 May 2014 The list included HENG Samrin 2 TCW 831 and OUK

550 Bunchhoeun 2 TCW 951 POL Saroeun 2 TCW 962 instead was added to the list of

551 proposed witnesses in July 2014 The NUON Chea Defence later made numerous

552 submissions requesting that these witnesses be heard While the National Co Prosecutor objected to summonsing these witnesses and proposed instead that written questions be sent

to them the International Co Prosecutor stated that he had no objections to these witnesses

553 being summonsed

13 1 1 NUON Chea Defence Submissions

200 The Nuon Chea Defence contend that not calling HENG Samrin 2 TCW 831 OUK Bunchhoeun 2 TCW 951 and POL Saroeun 2 TCW 962 would violate fair trial rights and

assert that their testimonies are likely to provide exculpatory evidence and would notably

support the defence theory on the existence of a rebellion led by traitorous factions among the CPK The summaries of the proposed witnesses’ testimony clarify the relevance of the

evidence they are expected to provide

201 According to the summary of proposed testimony submitted by the NUON Chea Defence Witness HENG Samrin 2 TCW 831 who is the current Honorary President of the

549 NUON Chea and KHIEU Samphan Appeal Judgement paras 149 150 155 158 550 Updated Lists and Summaries of Proposed Witnesses Civil Parties and Experts E305 4 8 May 2014 551 NUON Chea Defence’s New Witness Civil Party and Expert List for Case 002 02 E307 4 24 July 2014 with Confidential Annexes E307 4 2 E307 4 3 552 NUON Chea’s First Rule 87 4 Request to Call Additional Witnesses and Rule 93 Request for Additional Investigations in Relation to the Case 002 02 Trial Segment on S 21 Security Centre and “Internal Purges” E391 24 March 2016 NUON Chea’s Second Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Leadership E392 1 April 2016 NUON Chea’s Third Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Evidence of Treasonous Rebellion E395 8 April 2016 NUON Chea’s Fourth Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment S 21 Operations and Documentary Evidence E412 7 June 2016 NUON Chea’s Fifth Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Evidence of Treasonous Rebellion Alleged Arbitrariness of Arrest and S 21 Security Centre E426 29 July 2016 553 National Co Prosecutor’s Objections to the Witnesses and Experts Proposed by the Other Parties confidential E305 10 30 May 2014 T 30 July 2014 pp 89 90 see also Decision on National Co Prosecutor’s Objections to the Witnesses and Experts Proposed by Other Parties E305 10 1 25 March 2016

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Cambodian People’s Party President of the Cambodian National Assembly and Member of

Parliament for Kampong Cham is relevant as he could describe

[his] experience as a high ranking CPK cadre Eastern Zone committee member deputy chief of staff of Military Region 103 CPK division commander and later as a major CPK defector and leader in the rebellion to overthrow the CPK His insights may assist in establishing facts concerning internal divisions within the CPK CPK policies concerning internal enemies and Vietnam Vietnamese aggression against DK and top ranking CPK factional support including but not limited to Sao Phim and others designation of traitors and internal purges in the Eastern Zone policies and conditions relating to cooperatives and treatment of former Lon Nol 554 officials the Vietnamese and the Cham

202 According to the NUON Chea Defence Witness OUK Bunchhoeun 2 TCW 951 who

is a Cambodian Senator and senior Cambodian People’s Party member is relevant as he could

describe

[his] experience as an Eastern Zone leader who participated in a rebellion against the CPK in 1978 and subsequently defected to Vietnam His insights may assist in establishing facts concerning internal divisions within the CPK CPK policies concerning internal enemies and Vietnam Vietnamese aggression against DK and top ranking CPK factional support and 555 designation of traitors and internal purges in the Eastern Zone

203 As regards Witness POL Saroeun 2 TCW 962 who is the current Commander of the

Royal Cambodian Armed Forces the summary of his proposed evidence suggests that his testimony is relevant because he could describe

[his] experience as a high ranking CPK cadre in the East Zone and later as a major CPK defector and leader in the rebellion to overthrow the CPK His insight may assist in establishing facts concerning internal divisions within the CPK CPK policies concerning internal enemies and Vietnam Vietnamese aggression against DK and top ranking CPK factional support including but not limited to Sao Phim and others designation of traitors and internal purges in the Eastern Zone policies and conditions relating to cooperatives and treatment former Lon Nol Officials the Vietnamese and 556 the Cham

204 While the summary of proposed testimony is mostly a cut and paste used for most of the witnesses proposed for the Internal Purges trial topic in subsequent oral and written

554 Updated Lists and Summaries of Proposed Witnesses Civil Parties and Experts E305 4 2 8 May 2014 pp 5 6 555 Updated Lists and Summaries of Proposed Witnesses Civil Parties and Experts E305 4 2 8 May 2014 p 12 556 New Witness Civil Party and Expert Summaries for Case 002 02 NUON Chea Defence Team confidential E307 4 3 07 July 2014 p 2

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submissions NUON Chea and his Defence team emphasized the relevance of their proposed

evidence Following the Co Prosecutors’ opening statements on 17 October 2014 NUON

Chea stressed that in his view HENG Samrin 2 TCW 831 is “even more important” in

Case 002 02 than Case 002 01 “because it is even more important in this second trial to understand Vietnam’s aggression expansion annexation and elimination of the Khmer

» 557 people” He stated that he believed that “several crimes” of which he is accused were in fact committed by SAO Phim ROS Nhim and other “traitors” outside of NUON Chea’s control and knowledge and that HENG Samrin 2 TCW 831 would be able to confirm this

558 to be the case

205 In various motions the NUON Chea Defence held that from their perspective HENG

Samrin 2 TCW 831 is “without a shadow of a doubt the most important witness in case

002 02 and Case 002 generally” on a “completely different stratosphere than every other

559 witness” and OUK Bunchhoeun 2 TCW 951 as “perhaps the second most important

560 witness in case 002 02” The NUON Chea defence insisted that HENG Samrin 2 TCW

831 who was only “two rungs below” SAO Phim and OUK Bunchhoeun 2 TCW 951

561 who “was only one level below Sao Phim in the East Zone civilian hierarchy” would offer

insight into the heart of the Defence case that

the CPK far from being a disciplined unified and “pyramidal” hierarchy was engulfed in constant internal turmoil that difference and equally strong factions including one led by East Zone secretary Sao Phim and Northwest secretary Ruos Nhim pursued competing agendas intending to seize overall control of the Party and the country and that one of those factions also 562 sought to advance the interest of at least Vietnam if not the Soviet Union

557 T 17 October 2014 El 242 1 p 68 ERN En 01032824 558 T 17 October 2014 El 242 1 pp 70 71 ERN En 01032826 010328267 559 NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 para 18 emphasis in the original NUON Chea’s Second Witness Request for the Case 002 02 Security Centres and ‘Internal Purges’ Segment Leadership E392 1 April 2016 para 18 560 NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 para 19 561 NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 para 20 562 NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 para 25 NUON Chea’s Second Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Leadership E392 1 April 2016 para 4 NUON Chea’s Third Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Evidence of Treasonous Rebellions E395 8 April 2016 para 4 NUON Chea’s Submission on the Relevance of Evidence of Treasonous Rebellions to His Individual Criminal Responsibility in Case 002 02 E395 2 10 June 2016 para 10

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206 Further the NUON Chea Defence stressed that as the most senior surviving East Zone

CPK cadres HENG Samrin 2 TCW 831 and OUK Bunchhoeun 2 TCW 951 would

obviously be able to offer “unparalleled irreplaceable eyewitness accounts” of the internal

purges in the East Zone which the Closing Order identifies as one of the two key sites were

563 the “internal purges” took place from mid 1976 until the end the fall of the CPK regime

The NUON Chea Defence submitted that the many arrests “initiated by CPK cadres [in the

East Zone] were motivated by the arrestee’s treason and in particular his or her participation

in developing a rebellion and a coup d’état’s [sic] against the CPK and legitimate DK

564 government” It claims that as “prominent leaders of a treasonous rebellion” HENG Samrin 2 TCW 831 and OUK Bunchhoeun 2 TCW 951 ’s eyewitness account would in

565 this regard be “unparalleled” and “irreplaceable” The NUON Chea Defence pointed to

HENG Samrin’s role in a rebellion and decision to “fight back” against POL Pot forces taken

566 at a “meeting of 20 district secretaries and military commanders” his involvement “in

creating a resistance front [ ]” and the contact between HENG Samrin 2 TCW 831 and

567 Vietnam from September 197 8 Finally the NUON Chea Defence also submitted that POL

Saroeun 2 TCW 962 as a former high ranking CPK cadre in the East Zone who defected to

Vietnam may offer unique insights into preparations for rebellion and the participation and

568 crackdown on East Zone cadres

207 In addition due to their position in the East Zone and connection to Sector 21 the NUON Chea Defence argued that HENG Samrin 2 TCW 831 and OUK Bunchhoeun 2

TCW 951 would very likely have first hand knowledge of “critical and irreplaceable”

information that would establish whether a policy to target the Cham in Sector 21 existed and

569 if so whether it can be attributed to NUON Chea According to the NUON Chea Defence

563 NUON Chea’s Second Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Leadership E392 1 April 2016 para 20 564 Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Leadership E392 1 April 2016 para 21 565 Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Leadership E392 1 April 2016 para 21 566 Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Leadership E392 1 April 2016 para 23 567 Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Leadership E392 4 April 2016 para 23 568 NUON Chea’s Second Witness Request for the Case 002 02 Security Centres and “Internal Purges” Segment Leadership E392 1 April 2016 paras 6 26 569 NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 para 20 see also NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 paras 21 23

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HENG Samrin 2 TCW 831 is the only witness on whom the Co Prosecutors relied in their Final Submissions when “claiming that at the 20 May 1975 conference ‘Pol Pot specifically

instructed CPK cadres that they were to force the Chams to raise pigs and eat pork and [that]

570 anyone who resisted was to be killed’” The NUON Chea Defence also highlighted that

HENG Samrin 2 TCW 831 was “the only witness still alive” who could “substantiate [ ]

assertions [ ] that at the 20 May 1975 CPK leaders’ conference in Phnom Penh cadres were

571 advised of an eight point plan the fifth point of which was to [eliminate religions

Further the NUON Chea Defence submitted that OUK Bunchhoeun 2 TCW 951 ’s

interview with HEDER suggests that the treatment of the Cham was owed to the Cham’s

572 separatist political tendencies rather than to a genocidal policy

13 2 Opinion of the Majority Judges NIL Nonn YA Sokhan and YOU Ottara

13 2 1 Introduction

208 According to the NUON Chea Defence HENG Samrin 2 TCW 831 defected from the

Khmer Rouge had a prominent role in Vietnamese backed forces that overthrew the

government of Democratic Kampuchea and has held senior positions in Cambodia since

573 1979 most recently as President of the National Assembly These are matters of

understandable personal interest to NUON Chea and of some historical and political

significance It does not follow however that such matters are legally relevant to Case 002 02

or the Trial Chamber’s assessment of NUON Chea’s innocence or guilt The same can be said

of two other witnesses requested by NUON Chea OUK Bunchhoeun 2 TCW 951 now a

senator and POL Saroeun 2 TCW 962 now the commander in chief of the Royal

574 Cambodia Armed Forces

570 NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 para 21 571 NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 para 21 512 NUON Chea’s Urgent and Consolidated Request to Expedite Two Already Requested Witnesses and Summons Four Additional Witnesses Regarding the Treatment of the Cham E370 29 September 2015 para 22 573 NUON Chea’s Updated Lists and Summaries of Proposed Witnesses Civil Parties and Experts E305 4 2 8 May 2014 pp 5 6 574 NUON Chea’s Updated Lists and Summaries of Proposed Witnesses Civil Parties and Experts E305 4 2 8 May 2014 p 12 in relation to OUK Bunchhoeun NUON Chea’s New Witness Civil Party and Expert Summaries for Case 002 02 E307 4 3 7 July 2014 p 2 in relation to POL Saroeun

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209 According to the NUON Chea Defence HENG Samrin 2 TCW 831 is on a

575 “completely different stratosphere” to any other potential witness in Case 002 This does not fit with research by Ben KIERNAN 2 TCE 89 according to whom HENG Samrin 2

TCW 831 had a relatively junior position in the overall chain of command during the period

576 relevant to Case 002 02 The Chamber’s role however is not to decide whether a lawyer’s

577 submissions amount to hyperbole or one researcher’s assessment an underestimate Our

task is to evaluate the likely importance of any requested oral testimony to the issues in Case

578 002 02 considering the relevant legal principles and other evidence available

13 2 1 1 The Supreme Court Chamber’s Judgement in Case 002 01

210 The Supreme Court Chamber’s Judgement of 23 November 2016 addressed the relevant

legal principles when finding that we erred by declining to summon HENG Samrin and OUK

579 Bunchhoeun in Case 002 01 The Supreme Court Chamber held that our decision in Case

002 01 was based on the purported delay likely to result from a summons and that this basis

580 was an assumption based largely on speculation In the Supreme Court Chamber’s view the Trial Chamber should have better explored their availability to testily only in the event

that they refused to a respond to a summons would the Trial Chamber have had to face the

581 question of coercive measures

211 The Supreme Court Chamber continued however that the Trial Chamber’s failure to

call HENG Samrin or OUK Bunchhoeun did not result in a miscarriage of justice in Case

575 Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and ‘Internal Purges’ Segment Leadership E392 1 April 2016 para 18 Nuon Chea’s Notice of Current Intention to Exercise his Right to Remain Silent in Case 002 02 E421 1 2 1 August 2016 para 6 576 Book edited by Ben KIERNAN 2 TCE 89 titled “Genocide and Democracy in Cambodia” E3 3304 ERN Kh 00711534 00711535 ERN En 00430240 at p 13 referring to Table 2 therein 577 Scholarly views can differ and although not directly related to the HENG Samrin 2 TCW 831 we heard evidence of such debate Philip SHORT 2 TCE 92 disagreed with parts of Ben KIERNAN’s 2 TCE 89 work and said he was “misguided on many points” see e g T 8 May 2013 Philip SHORT pp 82 83 108 109 Stephen HEDER 2 TCE 87 said that he and Ben KIERNAN 2 TCE 89 have criticized each other’s work and he questioned Ben KIERNAN’s 2 TCE 89 conclusions that conditions in the East Zone were “less bad” see e g T 16 July 2013 Stephen HEDER pp 74 79 David CHANDLER 2 TCE 84 agreed with Stephen HEDER 2 TCE 87 that Ben KIERNAN 2 TCE 89 did not adequately address the accountability of “lower downs” see T 23 July 2012 David CHANDLER pp 70 72 Stephen MORRIS 2 TCE 98 suggested that Ben KIERNAN 2 TCE 89 had a strong political agenda and aligned himself with the Vietnamese Communist Party’s interpretation of events see T 18 October 2016 Stephen MORRIS pp 69 71 578 The relevant legal principles are summarised in the main body of this decision at paras 9 17 See also our opinion in the Final Decision on Witnesses Experts and Civil Parties to be Heard in Case 002 01 7 August 2014 E312 at paras 88 89 The international cases consider whether proposed evidence is available through other means including in documentary evidence before initiating the judicial power to compel 579 Appeal Judgement F36 23 November 2016 paras 123 132 166 580 Appeal Judgement F36 23 November 2016 paras 146 7 581 Appeal Judgement F36 23 November 2016 para 148 in relation to HENG Samrin para 158 in relation to OUK Bunchhoeun

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582 002 01 In so holding the Supreme Court Chamber held that the right to request that

witnesses be called in one’s defence is an essential component of the right to a fair trial but

583 the right is not absolute The Trial Chamber should strive to obtain the witness or other

584 means of evidence that can best shed light on the events in question Where there are

several witnesses or pieces of evidence relating to the same subject matter the Trial Chamber

585 may decide not to call all of them but only those that are most relevant

13 2 1 2 Our approach in Case 002 02

212 We kept NUON Chea’s requests to call HENG Samrin 2 TCW 831 OUK

Bunchhoeun 2 TCW 951 and POL Saroeun 2 TCW 962 under review over the course of

586 Case 002 02 In May 2016 the President instructed WESU to make enquiries as to the

587 proposed witnesses’ availability and willingness to give oral evidence in Case 002 02

588 Those enquiries were unsuccessful After WESU’s enquiries the issue for the Trial

Chamber was whether to issue summonses and seek to compel testimony from HENG Samrin

2 TCW 831 OUK Bunchhoeun 2 TCW 951 or POL Saroeun 2 TCW 962 We

considered the practical difficulties that compulsion would likely entail most notably in relation to HENG Samrin 2 TCW 831 and OUK Bunchhoeun 2 TCW 951 who enjoy parliamentary immunity Although the point remains that immunity needs to be invoked in

order to operate it would be formalistic and unrealistic to ignore the practical situation If

evidence is sufficiently important unique or exculpatory however then practical difficulties

including any immunity ought to be overcome in the interests of justice We therefore

focused our assessment on the likely significance of oral evidence from HENG Samrin 2

TCW 831 OUK Bunchhoeun 2 TCW 951 and POL Saroeun 2 TCW 962 rather than

any practical difficulties that immunities or apparent reluctance to cooperate might create

We also gave careful and ongoing consideration to the evidence before the Chamber as Case 002 02 progressed

582 Appeal Judgement F36 23 November 2016 para 155 with reference to para 99 583 Appeal Judgement F36 23 November 2016 para 133 584 Appeal Judgement F36 23 November 2016 para 144 585 Appeal Judgement F36 23 November 2016 para 150 586 See e g Decision on NUON Chea Request to Expedite two Previously Proposed Witnesses and Summons four Additional Witnesses during the Case 002 02 Trial Topic on the Treatment of the Cham with Written Reasons to follow E370 3 18 December 2015 para 2 b reasons provided in E370 4 25 March 2016 para 18 587 Letters from Trial Chamber regarding HENG Samrin 2 TCW 831 OUK Bunchhoeun 2 TCW 951 and POL Saroeun 2 TCW 962 E29 504 16 May 2016 588 See WESU Report on 2 TCW 831 2 TCW 951 2 TCW 962 E29 504 2 2 September 2016

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213 NUON Chea failed to persuade us that these persons would give evidence of substantial

assistance to his defence that is unavailable from other sources We therefore declined to

summon them primarily on the basis of Internal Rule 87 3 a that their proposed evidence

was of lesser relevance or substantially repetitive of other evidence but also under Internal

Rule 87 3 c their evidence is unsuitable to prove the matters advanced by NUON Chea

and under Internal Rule 87 3 e in that some of the submissions of NUON Chea had no

foundation and were frivolous

214 Our eventual conclusion not to summon HENG Samrin 2 TCW 831 OUK

Bunchhoeun 2 TCW 951 or POL Saroeun 2 TCW 962 differed from that of our

international colleagues On 27 December 2016 the Trial Chamber notified the Parties that it

was unable to reach an affirmative majority with the result that these persons would not be

589 summoned This opinion sets out the reasons for our decision We disagree with our

international colleagues’ focus on prima facie relevance In our view the correct approach is

to weigh the relative importance of proposed witnesses to material issues in the case while considering evidence already before the Chamber and the specific language in Internal Rule

87 We set out our reasoning in detail with references to evidence already before the

Chamber There are overlaps in our reasoning in relation to each person partly because of the

emphasis which NUON Chea placed on their respective roles in the overthrow of the

government of Democratic Kampuchea the “treasonous rebellion” and events in the East

Zone To minimise repetition at points we elaborate more fully in relation to one person

rather than another It should be understood however that aspects of our reasoning in relation

to one person might apply to another We turn first to HENG Samrin 2 TCW 831 because

of the number and nature of the submissions made in relation to him

13 2 2 HENG Samrin 2 TCW 831

215 Ben KIERNAN 2 TCE 89 interviewed HENG Samrin 2 TCW 831 in December

590 1991 and December 1992 Typed notes of those interviews are in evidence as are

591 592 handwritten notes There is also an audio recording of the 1992 interview A biography

589 Final List of witnesses Civil Parties and experts for Case 002 02 E454 27 December 2016 para 3 590 Interviews of HENG Samrin E3 1568 see ERN Kh 00713940 00713967 ERN En 00651875 00651892 for 1991 and ERN Kh 00713967 00713993 ERN En 00651892 00651907 for 1992 591 Interview with CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991

E3 5593 see ERN Kh 00713941 00713967 ERN En 00419389 00419425 for 1991 and ERN Kh 00713968 00713993 ERN En 00419426 00419457 for 1992

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of HENG Samrin 2 TCW 831 said to have been prepared by Vietnamese or East German

593 sources in December 1978 is also in evidence Some emphasis has also been placed on

video footage which it is said depicts HENG Samrin 2 TCW 831 speaking at a gathering

594 in the East Zone possibly in 1978 attended by POL Pot and SAO Phim among others

13 2 2 1 The East Zone

216 NUON Chea does not contend that HENG Samrin 2 TCW 831 was a member or

attended any meetings of the Standing Committee the Central Committee the General Staff

the CPK’s Military Committee or any government ministry Rather NUON Chea emphasises

that HENG Samrin 2 TCW 831 was the secretary of the East Zone’s 4th Division the East

595 Zone’s deputy chief of staff and a member of the East Zone committee NUON Chea

submits that HENG Samrin 2 TCW 831 is therefore one of the “senior most surviving

596 members of the East Zone authority structure” Ben KIERNAN 2 TCE 89 described

597 HENG Samrin 2 TCW 831 as the East Zone’s “third ranking military officer”

217 The Chamber has before it documentary evidence of meetings involving military

personnel apparently proximate to the upper levers of military power in Democratic

Kampuchea including records of meetings on 27 June 1976 2 August 1976 12 August 1976 18 August 1976 30 August 1976 16 September 1976 19 September 1976 30 September

1976 9 October 1976 18 October 1976 11 November 1976 21 November 1976 15

598 December 1976 1 March 1977 and 3 April 1977 None of these documents suggest nor

592 HENG Samrin interviewed by Ben KIERNAN 7 12 1992 E3 2961R for Tape A and HENG Samrin interviewed by Ben KIERNAN 7 12 1992 E3 2962R for Tape B 593 Compilation of 21 Kurzhiographies produced by the German Democratic Republic Ministry of State Security Stasi E3 9720 ERN Kh 01306165 01306169 ERN En 01206272 01206274 admitted on 11 March 2016 see Decision Admitting the Nuon Chea Defence’s Proposed Document E307 5 2 8 Into Evidence E305 18 11 March 2016 594 The video is titled “Pol Pot visiting a rubber tree plantation and Khmer Rouge soldiers preparing for war” E3 3015R V00422521 at 0 00 2 mins 19 seconds 595 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 20 Interviews of HENG Samrin E3 1568 ERN Kh 00713925 00713926 ERN En 006518866 see also ERN Kh 00713967 00713970 ERN En 00651892 00651893 stating that HENG Samrin 2 TCW 831 became Deputy Chief of Eastern Zone General Staff in early 1976 after the creation of the 4th Division in early 1976 596 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 20 597 [Corrected 1] Book by Ben KIERNAN entitled “The Pol Pot Regime Race Power and Genocide in Cambodia under the Khmer Rouge 1975 79” E3 1593 ERN En 01150102 p 210 fn 115 598 The documentary evidence of high level military meetings we have reviewed included • 27 June 1976 Minutes of Meeting between Secretaries Division’s logistic unit and Independent Regiment E3 819 noting comments by Met Mut Tal Pin Oeun Sok 89 Nat Brother Turn • 2 August 1976 Minute of Meeting E3 795 noting comments by Pin Sokh Tat San Yann Oeun Nay Mom Sim Rin Huy Sao 89 and Nat As to the reference in English to “Rin” we understand the original

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has it been argued that HENG Samrin 2 TCW 831 was involved in these meetings or any

similar meeting for which written records no longer remain This is so even in relation to

599 high level military meetings discussing matters relevant to the East Zone There are also

600 lists of hundreds of attendees at General Staff training sessions in 1976 We have not

identified any reference to HENG Samrin 2 TCW 831 attending meetings at this level The

same applies to records of Standing Committee meetings on matters closely related to the East

601 Zone

Khmer to refer to the Secretary of Regiment 75 who was “Vin” rather than “Rin” see 1st General Staff Training E3 1585 20 October 1976 ERN Kh 00095542 ERN En 00897664 at person 271 12 August 1976 Minutes of Meeting of the Committees Attached to Divisions and Independent Regiments E3 796 noting comments from Brother 89 Pin Meid Oeun Suong Sung Sim and Tal 18 August 1976 Minutes of the meeting of Division and Independent Regiments E3 797 noting comments by Pin Sok Suong 89 30 August 1976 Minutes of the Meeting of Secretaries and Deputy Secretaries of Divisions and Independent Regiments E3 798 noting comments by 89 Suong Veuang Met Met Pin Reuan Sav 16 September 1976 Minute of Divisional and Independent Regiment Secretary under secretary’s meeting E3 800 and E3 9260 noting comments by Voeung Pin Nat Met Tat 89 19 September 1976 Minute of Divisional and Regiment secretary undersecretary of logistics meeting E3 809 and E3 9260 noting comments from Met Mut Sokh Pheap Huy Oeun Suong Pin Hin Sim Comrade Vin 81 89 30 September 1976 Minute of the Meeting on Production Work E3 801 recording reports from divisions 502 310 488 152 377 S 21 703 75 170 450 9 October 1976 Minutes of the Meeting of Secretaries and Deputy Secretaries of Divisions and Independent Regiments E3 13 recording comments by 89 Suong San Met Deum Sok Tal Pin Euan Nai Mut Nat Rin Sav Sim As to the reference in English to “Rin” see our observation in relation to the meeting on 2 August 1976 18 October 1976 Minutes of Meeting of Secretaries and Deputy Secretaries of Divisions and Regiments E3 815 recording comments by 89 11 November 1976 Minutes of Meeting of Secretaries and Deputy Secretaries of Divisions and Independent Regiments E3 802 noting comments by Nath 89 21 November 1976 Minutes of the Plenary of the brigade division committees commanders E3 803 noting comments by Met Pin Oeun Sok Suong Tal Nay Mut Pheap Sim Vin Nat 89 15 December 1976 Minutes of Meeting of Secretaries and Logistics Officers of Divisions and Independent Regiments E3 804 noting comments by Met Pin Sokh Savoeun Voueng Suong Say Soeun Pheap Sim Nai Rin 89 As to the reference in English to “Rin” see our observation in relation to the meeting on 2 August 1976 1 March 1977 Minutes of the Meeting of Secretaries and Deputy Secretaries of Divisions and Independent Regiments E3 807 recording reports by Met Chhin Maut Pheap Yan Sokh Sim Tal Pin Sao Rin 89 As to the reference in English to “Rin” see our observation in relation to the meeting on 2 August 1976 3 April 1977 Minutes of the meetings of divisions and independent regiments E3 10693 recording reports by Sen Pin Opura Sok Tal Suong Sim May 599 See e g the record of one meeting on 16 September 1976 E3 822 and E3 4175 which records the views of Tal 89 81 and Duch discussing the arrest of Chan Chakrei his wife and niece the Secretary of Sector 24 and matters involving Divisions 290 and 170 The reference to Tal may be to HENG Samrin’s 2 TCW 831 younger brother 600 See 1st General Staff Training dated 20 October 1976 E3 1585 attended by 342 persons 311 of whom are listed by name function and unit see also E3 847 and the “Second General Staff Study Session” dated 23 November 1976 attended by some 326 persons 601 Meeting of the Standing Committee 9 October 1975 E3 1612 ERN Kh 00019120 00019124 ERN En 00183403 00183405 discussing Comrade Mean and Comrade Chhouk among others Record of Meeting of the Standing Committee 11 March 1976 E3 217 discussing problems on the Eastern Frontier Record of the Standing Committee 23 March 1976 E3 218 where Comrade YA reports on results of negotiations with

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218 The apparent limitation of HENG Samrin’s 2 TCW 831 role to the East Zone might

explain why he does not appear to have been involved in meetings of divisions or independent

regiments under the General Staff The East Zone was according to the Closing Order and

depending on the particular point in time one of six or seven zones in Democratic

602 Kampuchea The Closing Order also identifies five or six other regional entities which like

603 zones reported directly to the Centre The East Zone was therefore one of 11 or 12 regional

604 605 entities Even if we weigh the East Zone’s size its military forces its border with

Vietnam none of which would make the East Zone unique or the position that SAO Phim

606 the secretary of the East Zone held in the CPK NUON Chea’s submissions exaggerate the significance of HENG Samrin’s 2 TCW 831 position in the overall hierarchy

219 The Trial Chamber heard extensive evidence from witnesses Civil Parties and experts

about events in the East Zone particularly after May 2016 and some of which we refer to

elsewhere in this opinion The volume of contemporaneous documentary evidence is also

relevant to our assessment Annexed to our opinion is an illustrative list of the

contemporaneous documentary evidence that we reviewed when assessing whether it was

necessary to summon HENG Samrin 2 TCW 831 This list is neither exhaustive nor

definitive Nothing we say in this opinion nor the inclusion of a document in our Annex

represents a finding on factual issues Yet considered together with witness and Civil Party

evidence before us the nature and extent of the contemporaneous documentary evidence

Vietnam regarding the Eastern border Examination of the Reaction of Vietnam During the Fifth Meeting 13 May 1976 E3 221 with comments from Comrade Chan among others 602 Closing Order OCIJ D427 15 September 2010 “Closing Order” at para 65 states that immediately after April 1975 there were six zones then in 1977 the North Zone was renamed as the Central Zone and a new North Zone was created 603 The Closing Order identifies Autonomous Sector 103 Preah Vihear Autonomous Sector 105 Mondulkiri Autonomous Sector 106 Siem Reap Autonomous Sector 505 Kratie Kamong Som Autonomous City and Phnom Penh 604 Documentary evidence before the Trial Chamber indicates that the population of the East Zone was approximately 1 7 million persons see Pol Pot Plans the Future Document III The Party’s Four Year Plan to Build Socialism in all Fields 1977 1980 E3 8 ERN Kh 00075829 ERN En 00104024 at Table 1 and E3 8 Document VI Report of Activities of the Party Center According to the General Political Tasks of 1976 ERN ” En 00104095 “Only in the East is the labor force not feeble 605 HENG Samrin 2 TCW 831 told Ben KIERNAN 2 TCE 89 that the East Zone had two divisions the 3rd and 4th Divisions then from early 1977 a third division the 5th Division was added HENG Samrin’s 2 TCW 831 4th Division had 6 000 8 000 troops but no tanks E3 1568 ERN Kh 00713958 ERN En 00651886 ERN Kh 00713969 ERN En 00651893 The 3rd Division had 5000 6000 troops ERN Kh 00713968 ERN En 00651892 The 5th Division which was created in early 1977 had about 5 000 troops E3 1568 ERN Kh 00713969 ERN En 00651893 In addition sectors and districts also had forces E3 1568 ERN Kh 00713971 ERN En 00651894 HENG Samrin 2 TCW 831 explained that the East Zone’s 1st Division became Centre Division 280 and the East Zone’s 2nd Division became Centre Division 290 E3 1568 ERN Kh 00713968 ERN En 00861892 606 According to the Closing Order para 22 Sao Yann alias Sao Phim was a full rights member of the CPK Standing Committee

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related to the East Zone was a factor in our conclusion that it is unnecessary to summon him

It is unfortunate that NUON Chea waived several opportunities to address the Chamber on

607 such contemporaneous documentary materials

13 2 2 2 Factions and treasonous rebellion

220 HENG Samrin’s 2 TCW 831 interviews with Ben KIERNAN 2 TCE 89 describe

events of May 1978 when according to him he narrowly avoided arrest SAO Phim withdrew HENG Samrin’s 2 TCW 831 command of the 4th Division and sent him from Suong to Prey

608 Veng city There followed days of considerable confusion including a “coup” then a

meeting on 27 May 1978 attended by 20 people including sector and district secretaries from

the East Zone A conditional plan was hatched to fight back against the Centre’s forces the

condition being that SAO Phim wanted three days’ grace to travel to Phnom Penh with his

609 bodyguards in order to clarify matters with POL Pot According to HENG Samrin 2 TCW

831 SAO Phim’s venture towards Phnom Penh was unsuccessful he was surrounded shot

and injured HENG Samrin 2 TCW 831 describes discovering SAO Phim wounded and

with alcohol In a further meeting HENG Samrin 2 TCW 831 begged SAO Phim to flee

but he insisted on staying SAO Phim was put in the care of forces from Srey Santhor District

HENG Samrin 2 TCW 831 then left SAO Phim for a further meeting in Prey Veng Leaflets

denouncing SAO Phim were then dropped from planes and he was killed by troops from Srei

610 Santhor District HENG Samrin 2 TCW 831 describes a series of battles along Highway 15 in the surrounding forest then further battles and meetings throughout the remainder of

6ii 1978 His forces became increasingly organised and obtained Vietnamese support

607 After disagreeing with other parties’ presentation of interviews during a document hearing on worksites on 26 August 2015 the Defence for NUON Chea repeatedly declined the opportunity to present key documents or respond to make observations on key documents presented by other parties in relation to the treatment of targeted groups see T 23 February 2016 p 5 security centres and internal purges see T 12 August 2016 p 4 the nature of the armed conflict see T 3 November 2016 p 3 608 Interviews of HENG Samrin E3 1568 ERN Kh 00713978 ERN En 00651898 609 Interviews of HENG Samrin E3 1568 ERN Kh 00713979 00713984 ERN En 00651899 00651901 HENG Samrin 2 TCW 831 identifies various attendees at the meeting of 27 May 1978 in Prey Veng including SAO Phim CHEA Sim Ta Tim deputy secretary of Sector 20 Pol Saroeun Ta Tor Khim Phan brother Run described as the chauffeur for Tep Vong Hem Bo secretary of Komcheay Meas District and the commanders of two marine battalions 610 Interviews of HENG Samrin E3 1568 ERN Kh 00713981 00713984 ERN En 00651900 1 ERN Kh

00713992 00713993 ERN En 00651907 see also E3 5593 ERN Kh 00713980 00713981 ERN En 00419442 611 Interviews of HENG Samrin E3 1568 ERN Kh 00713984 00713985 ERN En 00651902

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221 Events in the East Zone in May June 1978 are described in the Closing Order in a

612 section summarising alleged purges The Closing Order alleges that hundreds of people

613 were arrested at the time corresponding to the alleged suicide of SAO Phim It is alleged

614 that NUON Chea participated in the purge of SAO Phim and the East Zone It is further alleged that SON Sen called KAING Guek Eav alias Duch 2 TCW 916 from the East Zone

615 to inform him that the Standing Committee had decided upon the purge

222 The Trial Chamber called LONG Sat 2 TCW 1065 a relative of SAO Phim and chief

6i6 of a hospital in HENG Samrin’s 2 TCW 831 East Zone Division 4 He described himself

as from May 1978 leading a “regiment” of some 340 troops in rebellion against Centre

617 618 forces He described various attacks from 25 May 1978 to November 1978 He recounted

619 personal conversations with SAO Phim SIN Oeng SIN Ung 2 TCW 1069 a relative and bodyguard of SAO Phim also described events surrounding SAO Phim’s death including

a meeting between SAO Phim and HENG Samrin 2 TCW 831 in Prey Veng in late May

620 1978 According to SIN Oeng SIN Ung 2 TCW 1069 he travelled with SAO Phim

towards Phnom Penh then later received news that SAO Phim killed himself when besieged

621 by Khmer Rouge forces

223 Further still NONG Nim 2 TCW 1070 a driver for SAO Phim described the same

622 period and forming an army of 200 300 persons to fight back against Centre forces MEAS

Soeurn MEAS Soeun 2 TCW 917 the son of SENG Hong alias Chan the deputy

secretary of the East Zone among other roles described leading some 500 troops to defend

623 the East Zone’s office in Suong and a letter from SAO Phim which requested that he fight

His evidence was that SAO Phim travelled to Phnom Penh to meet POL Pot and NUON

624 Chea MY Savoeun MEY Savoeun 2 TCCP 1040 described SAO Phim organizing a meeting in which he spoke of forces from the Southwest and West Zones who wanted to kill

East Zone soldiers SAO Phim asked the attendees if they wanted to be killed or rise up

612 Closing Order para 200 613 Closing Order para 431 614 Closing Order paras 891 987 615 Closing Order para 941 616 T 2 November 2016 LONG Sat p 79 617 T 1 November 2016 LONG Sat pp 62 63 T 2 November 2016 LONG Sat p 77 618 T 2 November 2016 LONG Sat pp 25 64 619 T 1 November 2016 LONG Sat pp 82 83 620 T 1 December 2016 SIN Oeng SIN Ung pp 101 103 621 T 5 December 2016 SIN Oeng SIN Ung pp 30 32 pp 41 43 622 T 12 December 2016 NONG Nim pp 40 43 see also E3 10717 ERN En 01355792 623 T 29 June 2016 MEAS Soeun pp 20 35 76 78 97 T 30 June 2016 MEAS Soeun pp 3 19 624 T 29 June 2016 MEAS Soeun pp 72 76

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625 instead HEM Moeun 2 TCW 976 testified that his regiment was involved in the arrest

626 SAO Phim PRAK Khom PRAK Khan 2 TCW 931 described as head of the “chewing

unit” at S 21 gave evidence that he saw a photo of SAO Phim when he had shot himself to

627 death in the East Zone Moreover KAING Guek Eav alias Duch 2 TCW 916 described

628 events at S 21 at this time including direct instructions from NUON Chea in May 1978 The Trial Chamber therefore heard extensive evidence in relation to the events of May June

1978 in the East Zone

224 We considered the potential significance of evidence of factions or rebellion in the East Zone before May 1978 For example HENG Samrin 2 TCW 831 stated that in “1976 1977

we had a struggle but a secret one But at that time it was tight and cramped there was no

629 opportunity to rise up and struggle” According to the Supreme Court Chamber in relation

to SAO Phim however even if one assumes that senior persons in the CPK were opposed to

NUON Chea “this would not mean without more that the crimes committed [ ] For which

these Zone leaders were responsible could not be imputed on the other members of the

630 JCE” The Supreme Court Chamber concluded that conflicts within large organizations are

“not unusual” and do not impact on the question of criminal responsibility under JCE as long

631 as the relevant elements are established There is only merit to the argument of alleged

factions within the CPK where crimes were committed against the common plan that is

632 where they did not form part or were not carried out in furtherance thereof Apart from one

isolated generalisation however we could not identify any coherent explanation by NUON

Chea as to which crimes he contends were committed by SAO Phim or others in the East

633 Zone against the alleged common plan

225 In May 2016 the Trial Chamber invited submissions from NUON Chea on the relevance

634 of further evidence on factions or rebellions In response NUON Chea referred to

625 T 17 August 2016 MY Savoeun MEY Savoeun pp 68 70 626 T 2 August 2016 HEM Moeun pp 71 78 see also E3 9029 ERN En 01060647 627 T 28 April 2016 PRAK Khan pp 91 94 628 T 14 June 2016 KAING Guek Eav pp 39 43 T 27 March 2012 KAING Guek Eav pp 26 32 629 Interviews of HENG Samrin E3 1568 ERN Kh 00713962 00713963 ERN En 00651889 630 Appeal Judgement F36 23 November 2016 para 1041 631 See e g Appeal Judgement F36 23 November 2016 paras 1041 1042 632 Appeal Judgement F36 23 November 2016 paras 47 154 633 On 17 October 2014 NUON Chea said that “several crimes” of which he is accused were in fact committed by SAO Phim ROS Nhim and other ‘traitors’ outside his control and knowledge and that HENG Samrin 2 TCW 831 would be able to confirm this T 17 October 2014 pp 70 71 634 Request for briefing on significance of conflicting factions within the DK leadership E395 1 11 May 2016 para 4 “How would the assessment of NUON Chea’s criminal responsibility be affected by further evidence ” tending to prove the existence of conflicting factions or rebellions whether supported by other countries or not

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competing internal agendas to seize overall control of the Party and country He did not argue

however that crimes in the East Zone were in fact committed by SAO Phim or HENG

Samrin 2 TCW 831 against CPK policy Although he suggested that Zone leaders were

“functionally independent” he did not argue that any particular crimes committed in the East

Zone were committed contrary to the alleged common plan Rather the focus of his

submissions was that the presence of factions and or rebellions justified arrests detentions

635 and the death penalty without any opportunity to challenge detention In light of this

although the full import of these submissions falls to be addressed in due course NUON Chea

failed to persuade us that evidence from HENG Samrin 2 TCW 831 on factions or

636 rebellions was as important or unique as he had submitted

13 2 2 3 Internal Purses and the armed conflict with Vietnam

637 226 NUON Chea submitted that HENG Samrin 2 TCW 831 would offer “unique’ and

638 “unparalleled irreplaceable eyewitness” evidence on events in the East Zone These submissions failed to address the substance of the allegations against NUON Chea The Closing Order alleges that the Centre established two field commands in the East Zone and

sent considerable forces there including troops from Divisions 703 340 221 460 805 210

230 250 270 207 604 280 and 175 among other forces plus senior individuals such as KE

639 Pauk and SON Sen and those who reported to them The Closing Order alleges that the

Standing Committee decided to purge East Zone military forces and sent disarmed East Zone

soldiers to the construction site of Kampong Chhnang airport site a Case 002 02 crime Site

640 located in the West Zone and about which the Trial Chamber heard evidence Purges in the

East Zone are alleged to have been orchestrated by persons such as SON Sen and KE Pauk

635 NUON Chea’s Submissions on the Relevance of Evidence of Treasonous Rebellion to his Individual Criminal Responsibility in Case 002 02 E395 2 10 June 2016 636 NUON Chea has been afforded opportunities to advance his case in this respect see Decision on NUON Chea Defence Request E448 to call two additional witnesses E448 2 14 December 2016 Decision on NUON Chea Defence Requests to hear Additional Witnesses pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 E443 21 September 2016 Decision on NUON Chea Defence Requests to hear Additional Witnesses pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 Full Reasons E443 10 31 March 2017 637 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 18 quoting NUON Chea Application for Disqualification of Judges Nil Nonn Ya Sokhan Jean Marc Lavergne and You Ottara E314 6 29 September 2014 para 40 638 NUON Chea’s Second Witness Request for the Case 002 02 Security Centres and ‘Internal Purges’ Segment Leadership E392 1 April 2016 para 20 639 Closing Order para 130 640 Closing Order paras 294 304 305

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using forces from the Centre and the Central and Southwest Zones who were placed under

641 the Centre’s command

227 It is in our view decisive that other sources of evidence can best shed light on these

events in particular evidence from relatively senior persons sent to the East Zone as opposed

to individuals already in the area For example CHHOUK Rin alias Sok’s TCW 110

evidence was that he rose to command Regiment 402 in Centre Division 703 and in 1977

642 was sent to arrest cadres from the East Zone IENG Phan’s 2 TCW 1046 evidence was

643 that he rose to command Intervention Brigade 221 sent to Svay Rieng in early 1978

CHUON Thy CHUON Thi alias THI Ov’s 2 TCW 859 evidence was that he was sent to

644 Svay Rieng in mid 1978 where he was deputy of Division 340 These persons also gave evidence about the instructions they received before being sent to the East Zone and the

structures within which they operated once there

228 In addition OU Dav’s 2 TCCP 235 evidence was that he was sent to the East Zone in

645 mid 1977 with some 800 to 1 000 soldiers where he worked under SON Sen CHHUN

Samorn 2 TCCP 236 a soldier in Sector 23 gave evidence that in 1977 reinforcement

soldiers were sent from the Central and Southwest Zones following which East Zone forces

646 were called back for training sessions then disappeared BAN Seak alias HANG Phos’s 2

TCW 950 evidence was that he was sent from the Central Zone to Krauch Chhmar District in

647 1978 He described soldiers being under the command of SON Sen There is therefore no foundation for NUON Chea’s contention that HENG Samrin’s position in the East Zone

means that his evidence would be unparalleled or irreplaceable in relation to purges or the

conflict with Vietnam

229 In addition to the witness and Civil Party evidence described above there is extensive documentary evidence emanating from S 21 directly relevant to events in the East Zone A

list of prisoners “smashed” on 27 May 1978 identifies 582 persons from various locations

641 Closing Order para 200 642 See e g T 22 April 2013 CHHOUK Rin p 36 E3 362 ERN En 002268896 E3 421 ERN En 00414058 CHHOUK Rin was also interviewed by the Office of ~~ Investigating Judges on 16 June 2015 That interview was admitted as ~~ 10621 643 See e g T 1 November 2016 IENG Phan pp 34 37 T 20 May 2013 IENG Phan pp 23 25 644 See e g T 25 October 2016 CHUON Thy pp 81 83 T 26 October 2016 CHUON Thy pp 24 25 46 T 24 April 2013 CHUON Thy pp 24 31 645 T 10 November 2016 OU Dav pp 91 96 103 106 646 T 28 June 2016 CHHUN Samorn pp 16 18 31 32 647 T 5 October 2015 BAN Seak pp 67 72

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648 including many from the East Zone Interrogators’ notebooks said to be from S 21 record matters from May 1978 and following months The “Pon Tuy Notebook” includes notes that

649 those detained around May 1978 had to pay homage to images of two dogs and discusses

650 the fate of “A Phim” and his connections The “Chan Notebook” notes a speech of 12 April

1978 discussing events in the East Zone including a principle of “1 against 90” in Svay

651 Rieng There are further notes related to events in the East Zone in May 1978 and

652 subsequent months As with the Pon Tuy Notebook there is a record dated 28 May 1978

that enemies brought in had to pay homage to images of dogs accompanied by the use of the

653 voice of superiors such as “sector 24 Chhouk” There are lists of prisoners who entered S

654 21 from the East Zone throughout the relevant period

230 In relation to the earlier period i e pre 1978 we have already referred to the

contemporaneous documentary evidence before the Trial Chamber Additionally among the

S 21 materials for Chan Chakrei alias Mean are notes suggesting that S 21 staff compared his

655 confessions with those of Suos Neou alias Chhouk alias Men the Secretary of Sector 24

and notes refer to S 21 staff gathering and reporting materials on Keo Samnang alias Mon

656 i e the East Zone’s Chief of Staff In the materials for Suos Neou alias Chhouk alias Men

657 are notes from 4 5 August 1976 that he was detained for behaving like a king in Sector 24 A further note of 30 September 1976 describes Angkar’s analysis of Brother Phim refers to

658 Brother’s Phim’s decision to report Chhouk and also Ly Phen A further note dated 1

648 List of prisoners killed in 1978 E3 8463 649 Pon’s uncatalogued 21 page document in DC Cam’s archive dated 7 12 December 1976 E3 834 ERN Kh 0077473 ERN En 00184496 650 Pon’s uncatalogued 21 page document in DC Cam’s archive dated 7 12 December 1976 E3 834 ERN Kh 00077474 00077477 ERN En 00184498 00184499 651 S 21 Notebook by MAM Nai alias Chan E3 833 ERN Kh 00077866 00077869 ERN En 00184599 00184600 652 S 21 Notebook by MAM Nai alias Chan E3 833 ERN Kh 00077915 00077953 ERN En 00184612 00184617 653 S 21 Notebook by MAM Nai alias Chan E3 833 ERN Kh 00077925 00077926 ERN En 00242259 654 See e g List of Prisoners from East Zone in 1976 E3 8489 List of Prisoners from East Zone E3 2022 List of prisoners interrogated by documentation team dated 23 May 1978 E3 1954 List of Prisoners from East Zone 5 June 1978 E3 2187 List of Prisoners from East Zone dated June 1978 E3 1998 List of Prisoners from East Zone dated 17 July 1978 E3 8538 List of prisoners from East Zone and North East Zone 16 October 1978 E3 2229 655 See Confession of Chan Chakrei E3 2791 ERN Kh 00031418 ERN En 00827833 annotation stating “Wait and look at Suos Neuo’s responses again” ERN Kh 00031315 “keep for Bong Chhouk case” and ERN Kh 00031418 “wait and see Suos’s answer” 656 Confession of Chan Chakrei E3 2791 ERN Kh 00031114 annotation noting the extraction of points on KEO Samnang alias Mum to be kept ERN Kh 00031457 collection of reports implicating KEO Samnang ” together with annotation “reported to Angkar on 2 October 1976 657 Confession of Suos Neou alias Chhouk Secretary of Sector 24 E3 2494 ERN Kh 00318585 00318613 658 Confession of Suos Neou alias Chhouk Secretary of Sector 24 E3 2494 ERN Kh 00319062 3 ERN En 00347515 00347516 We are alert to the point that according to HENG Samrin 2 TCW 831 Chhouk was

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October 1976 describes the “Committee” as seeing Brother Phim as a major person in the

659 CPK and further notes summarise Chhouk’s treatment in S 21 including that recordings

660 of Chan Chakrei’s confessions were played and or shown to him For Seat Chhae alias

Turn a former Secretary of Sector 22 annotations indicate that he was asked about “Phim

” 203 and to “report manipulative actions particularly with Yos taken to prevent the Party’s

66i plans in Sector 22 in the past”

231 In addition to the contemporaneous documentary evidence discussed above and annexed

to our opinion another factor in our assessment was NUON Chea’s failure to identify request

or utilise documentary evidence related to persons who on his case were significant because

of their positions in the East Zone For example the OCIJ’s Prisoner List among other

sources identifies readily available documentary evidence related to Meas Mon alias Keo

662 Samnang the East Zone’s chief of staff KOY Chhoeun HENG Samrin’s apparent

663 successor as secretary of the East Zone’s 4th Division Sokh Khnul alias Lin alias Peam

664 665 chief of the East Zone’s office HENG Kim secretary of the East Zone’s 5th Division

666 secretaries of Centre Division 280 and various secretaries of different sectors in the East

667 Zone Lawyers may of course exercise judgement in deciding which evidence to seek out

arrested when SAO Phim was in China for medical treatment between May and August 1976 see Interviews of HENG Samrin E3 1568 ERN Kh ERN En 00651896 00651889 659 Confession of Suos Neou alias Chhouk Secretary of Sector 24 E3 2494 ERN Kh 00319131 00319132 ERN En 00347519 00347520 660 See e g Confession of Suos Neou alias Chhouk Secretary of Sector 24 E3 2494 ERN Kh 00318935 00318936 ERN En 00347508 00347509 note dated 20 September 1976 signed Duch ERN Kh 00318945 00318946 ERN En 00347513 00347514 note dated 26 September 1976 signed by Duch Confession of Chan Chakrei E3 2791 ERN Kh 00031234 “for IX to read” and ERN Kh 00318623 “Sous Neo tried to make excuses after listening to Chakrei’s recording concerning his communications [ ]” 661 See e g S 21 Confession of SEAT Chhae alias Turn Secretary of Sector 22 East Zone E3 1893 ERN Kh 00005599 and E3 2490 ERN Kh 00313708 ERN En 00797067 List of Prisoners E3 2285 ERN Kh 00009146 ERN En 00873280 00873281 indicates that SEAT Chhe alias Tom former Secretary of Sector 22 entered S 21 on 2 October 1976 and was “smashed and photographed” on 8 December 1977 662 See e g OCIJ S 21 Prisoners List 31 March 2016 E3 10604 which at 5235 identifies confession “M28” This was also available to the Parties on the Shared Materials Drive Confession of Meas Mon alias Meas Sithon alias Keo Somnang Army Chief East Zone 203 ERN Kh 00035863 00036640 663 See e g OCIJ S 21 Prisoners List 31 March 2016 E3 10604 which at 2363 identifies confession “K170” According to HENG Samrin’s 2 TCW 831 interview with Ben KIERNAN 2 TCE 89 the command of the East Zone’s 4th Division was withdrawn from him on 18 May 1978 when he was sent from Suong to Prey Veng city by SAO Phim see Interviews of HENG Samrin E3 1568 ERN Kh 00713977 00713978 ERN En 00651898 664 See e g OCIJ S 21 Prisoners List 31 March 2016 E3 10604 which at 8859 identifies confession “S42” 665 See e g OCIJ S 21 Prisoners List 31 March 2016 E3 10604 which at 1989 identifies confession “H96” 666 See e g OCIJ S 21 Prisoners List 31 March 2016 E3 10604 which at 2969 identifies confession “K252” for Ke San alias Sok alias That Secretary of Division 280 described as Division 170 and at 2047 which identifies confession “122” for It Man alias Tat “Secretary of Division 170 or 280” 667 See e g OCIJ S 21 Prisoners List 31 March 2016 E3 10604 which at 460 identifies confession “C180” for Chea Sin alias Sun Secretary of Sector 20 and 5999 which identifies confession “0107” for Ok Ngatt Uk

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and how to advance their client’s case It is however difficult to reconcile the exorbitant

claims as to the importance of HENG Samrin 2 TCW 831 with the apparent failure to take

straightforward steps to identify and request contemporaneous documentary materials directly

linked to the case advanced

13 2 2 4 Treatment of targeted groups

232 The Trial Chamber heard extensive evidence on the treatment of targeted groups In

relation to the treatment of the Vietnamese parts of the Closing Order focus to a degree on

668 events in Prey Veng and Svay Rieng provinces According to HENG Samrin’s interviews

669 however from 1976 until 1978 he was based in Kraek with the East Zone’s 4th Division

Counsel for NUON Chea placed some emphasis on video footage or an image extracted from

this video which counsel suggests depicts HENG Samrin speaking at a meeting in the East

670 Zone also attended by with POL Pot and SAO Phim among many other persons For the

purposes of this decision we assumed that this video footage indeed shows HENG Samrin 2

TCW 831 HENG Samrin’s 2 TCW 831 interviews describe a gathering in the East Zone

held in early 1978 attended by POL Pot among other persons According to HENG Samrin 2 TCW 831 POL Pot announced that each Kampuchean soldier could undertake to kill 30 Vietnamese HENG Samrin 2 TCW 831 explained that POL Pot included both Vietnamese

671 troops and civilians in this figure

233 Although such evidence is relevant to Case 002 02 it does not appear to be exonerating

or mitigating in relation to the charges faced by NUON Chea Moreover the arithmetic of 1

672 against 30 is repetitive of other evidence before the Trial Chamber Its meaning falls to be

determined in due course in light of all the evidence before the Trial Chamber This video

Savann alias Savann or So Secretary of Sector 23 The Trial Chamber has before it some materials pertaining to KONG Chea Sin alias Sun namely [Corrected] S 21 Confession of KONG Chea Sin alias Sun E3 2997 668 Closing Order paras 797 801 cf para 214 paras 802 804 814 831 669 Interviews of HENG Samrin E3 1568 ERN Kh 00713958 ERN En 00651886 670 Pol Pot visiting a rubber tree plantation and Khmer Rouge soldiers preparing for war E3 3015R V00422521 at 0 00 2 mins 19 seconds Counsel for NUON Chea showed this video or stills from it to the following witnesses MEAS Soeum MEAS Soeun 2 TCW 917 on 29 June 2016 LONG Sat 2 TCW 1065 on 7 November 2016 SIN Oeng SIN Ung 2 TCW 1069 on 5 December 2016 and NONG Nim 2 TCW 1070 on 8 December 2016 It does not seem to have been suggested that NUON Chea attended this meeting 671 Interviews of HENG Samrin E3 1568 ERN Kh 00713986 00713989 ERN En 00651903 00651904 672 Revolutionary Flag for April 1978 includes a Presentation of the Secretary of the CPK on the 3rd Anniversary of 17 April 1975 includes a discussion of numbers before concluding “We implement 1 against 30” E3 4604 ERN Kh 00064714 ERN En 00519834 According to the Closing Order para 823 in May 1978 the CPK broadcast a policy over the radio stating that “one of us must kill 30 Vietnamese” Report about Cambodia’s Strategy of Defence against Vietnam Phnom Penh home service 10 May 1978 E3 8398 ERN Kh 00225462 00225463 ERN En 00003960 00003961 Past Year’s National Defence Efforts Reviewed E3 1362 ERN En 00170016 See also T 26 January 2016 PRUM Sarat pp 61 67

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does not persuade us that HENG Samrin 2 TCW 831 should summoned to further describe

a meeting which was according to the video footage attended by a very large number of

673 other people We further concluded that evidence from HENG Samrin 2 TCW 831 on the treatment of the Vietnamese would be substantially repetitive of other evidence before the

674 Trial Chamber

234 In relation to the treatment of former leaders of the previous LON Nol government

HENG Samrin 2 TCW 831 gave an account of a meeting in Phnom Penh on 20 May 1975

when NUON Chea used the word “komchat” rather than “komtec” HENG Samrin 2 TCW

675 831 stated however that he was one among thousands of persons to attend this meeting NUON Chea submission that HENG Samrin 2 TCW 831 is “the only witness alive” who

676 could discuss numbered plans set out during this meeting must therefore be rejected We consider that the interview notes sufficiently and reliably demonstrate that HENG Samrin 2

TCW 831 stated that NUON Chea used the word “komchat” at the meeting on 20 May 1975 In Case 002 01 Supreme Court Chamber held that is unlikely that testimony from HENG Samrin 2 TCW 831 would produce significant additional exonerating information in

677 relation to the use of the word “komchat” at the meeting on 20 May 197 5 We agree HENG Samrin 2 TCW 831 also recounts that NUON Chea said at this meeting that monks

678 were a “special class” to be “wiped out” and that wats would not be allowed He said that NUON Chea talked of the need to “evacuate” Vietnamese residents from Cambodia they

» 679 were “not allowed in Kampuchea territory” In our assessment it is unlikely that oral

evidence on such matters would be unique or exculpatory

673 Elsewhere in his interviews with Ben KIERNAN 2 TCE 89 HENG Samrin 2 TCW 831 stated that it was not POL Pot and NUON Chea who ordered the killing of Vietnamese but the “implementing level” E3 1568 ERN Kh ERN00713954 00713955 ERN En 00651884 This was inconsistent with his detailed description of POL Pot’s speech in the East Zone The meaning of the broadcast arithmetic 1 for 30 is a material issue before the Trial Chamber We do not consider that oral evidence from HENG Samrin 2 TCW 831 on this arithmetic would be particularly unique Our international colleagues also note HENG Samrin’s 2 TCW 831 reference to the “implementing level” killing Vietnamese in 1976 We see no basis however to conclude that HENG Samrin 2 TCW 831 possesses unique evidence in this regard In our view this matter falls to be determined in due course in light of all the evidence before the Trial Chamber including evidence from other locations such as the Southwest Zone where no suggestion is made that ~~ ~~~ led any competing faction 674 See section 7 above 675 Interviews of HENG Samrin E3 1568 ERN Kh 00713947 00713948 ERN Kh 00651880 Borei Keila ERN Kh 00713986 00713987 ERN En 00651903 Borei Keila then Olympic Stadium 676 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 21 677 Appeal Judgement F36 23 November 2016 para 154 678 Interviews of HENG Samrin E3 1568 ERN Kh 00713952 00713955 ERN En 00651883 00651884 679 Interviews of HENG Samrin E3 1568 ERN Kh 00713954 00713955 ERN En 00651884

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235 The Chamber in any event heard numerous witnesses describe meetings in Phnom Penh in May 1975 Evidence from HENG Samrin 2 TCW 831 would be substantially repetitious

of evidence from persons such as PRAK Yut 2 TCW 938 who described a big meeting at

the Olympic Stadium with some 300 400 people there including participants from every

680 province and some sectors SAO Sarun 2 TCW 1012 who described a 3 day session with representatives from sectors and division military representatives where NUON Chea

681 and POL Pot presented PHAN Van alias KHAM Phan 2 TCW 1011 who accompanied

his father to Phnom Penh in May 1975 and described cadres from every corner of the country

682 at the gathering at the Olympic Stadium and KLAN Fit TCCP 185 who described

being invited to Phnom Penh close to the time of the liberation where he attended a lecture

683 given by NUON Chea to 500 600 individuals from various locations In relation to the treatment of former LON Nol soldiers and officials other witnesses spoke of subsequent instructions including PECH Chim 2 TCW 809 who said that cadres at district level went

684 685 to the big meeting in Phnom Penh and SAO Van alias Port 2 TCW 989 Finally we

highlight elsewhere in our opinion the evidence before the Trial Chamber of many other

meetings or study sessions in which NUON Chea was involved during the relevant period

236 In relation to the Treatment of the Cham in the East Zone we do not consider HENG

Samrin 2 TCW 831 to be relevant to the allegations concerning Trea Village security centre

686 as these focus on events “from mid 1978” As to earlier events in particular the Cham

rebellions in Sector 21 in 1975 HENG Samrin 2 TCW 831 claimed that his troops were not

680 T 19 January 2016 PRAK Yut pp 85 91 T 21 January 2016 PRAK Yut pp 43 66 67 681 T 6 June 2012 SAO Sarun pp 32 35 44 45 60 62 T 30 March 2016 SAO Sarun pp 32 37 682 T 11 December 2012 PHAN Van pp 93 96 T 12 December 2012 PHAN Van pp 35 37 14 December 2012 PHAN Van pp 26 27 683 T 10 January 2012 KLAN Fit pp 101 103 Our international colleagues highlight that neither minutes nor other contemporaneous documents from the May 1975 meetings are available if they ever existed and that there are discrepancies in the evidence from those who attended We do not consider this to be an unusual situation for a trial taking place so long after the events in question and any discrepancies thought to be material could have been raised with those witnesses Our international colleagues further question how policies were disseminated or implemented after 20 May 1975 This fails to consider any other evidence before the Trial Chamber not least the contemporaneous materials available from 1975 including issues of Revolutionary Flag for August 1975 E3 5 and October November E3 748 Issues of Revolutionary Youth for July 1975 E3 724 August 1975 E3 749 September 1975 E3 728 October 1975 E3 729 November 1975 E3 750 or December 1975 E3 730 and Policy Document Number 3 19 September 1975 E3 781 and Policy Document Number 6 22 September 1975 E3 99 684 T 23 April 2015 PECH Chim pp 69 75 685 T 1 February 2016 SAO Van pp 19 23 34 65 686 Closing Order paras 784 790

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687 involved rather it was “security” following direct orders from POL Pot We expand on this point below in relation to OUK Bunchhoeun 2 TCW 951

13 2 2 5 Character or otherwise unique or exculpatory evidence

237 During the Case 002 investigation counsel submitted that “according to instructions”

HENG Samrin 2 TCW 831 acted as NUON Chea’s guide on missions to Eastern Cambodia

688 to visit SAO Phim and Nguyen Van Linh a member of the Communist Party of Vietnam NUON Chea stated to the Trial Chamber that HENG Samrin 2 TCW 831 guided him to

689 meet Nguyen Van Linh in the 1960s He later explained that HENG Samrin 2 TCW 831

was tasked by SAO Phim to escort him to the border that HENG Samrin 2 TCW 831 was

close to him courageous and that these trips took place approximately every two months the

690 last in perhaps late 1975

238 The ambitious submission advanced on NUON Chea’s behalf was that NUON Chea and

HENG Samrin 2 TCW 831 have “known each other for 60 years and worked together for

two decades” and that “few people still alive in Cambodia today had as long and close a

691 relationship with NUON Chea” Neither the evidence nor counsel’s described instructions

bore a reasonable relation to the submissions advanced Other witnesses claimed far greater connection to and personal interaction with NUON Chea especially during the period of 1975 to 1979 For example SAO Sarun 2 TCW 1012 who became Secretary of Autonomous Sector 105 which like the East Zone bordered Vietnam described high level

meetings in Phnom Penh with NUON Chea among other persons when he was asked to

692 become Sector Secretary Kaing Guek Eav alias Duch 2 TCW 916 gave evidence of

693 regular one on one meetings with NUON Chea from 15 August 1977 SAUT Toeung’s

TCW 617 evidence was that he was one of NUON Chea’s bodyguards and messengers and he travelled with NUON Chea including to the East Zone where NUON Chea would meet

687 Interviews of HENG Samrin E3 1568 ERN Kh 00713956 00713966 ERN En 00651885 00651891 688 NUON Chea’s lawyers’ 10th request for investigative actions 24 February 2009 D136 para 10 689 T 31 January 2012 NUON Chea p 46 690 T 9 February 2012 NUON Chea pp 44 46 691 See NUON Chea’s Request for Reconsideration of the Supreme Court Chamber’s Decision not to summon HENG Samrin and Robert LEMKIN F2 10 4 February 2016 para 39 to which we were directed by Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and ‘Internal Purges’ Segment Leadership E392 1 April 2016 para 18 and Nuon Chea’s Notice of Current Intention to Exercise his Right to Remain Silent in Case 002 02 E421 1 2 1 August 2016 para 6 692 See e g T 6 June 2012 SAO Sarun pp 98 99 693 T 7 June 2016 KAING Guek Eav pp 51 54 60 63 T 14 June 2016 KAING Guek Eav alias Duch pp 55 62 74 80

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694 SAO Phim SIN Oeng SIN Ung 2 TCW 1069 was one of SAO Phim’s bodyguards and described visits by NUON Chea to the East Zone to meet SAO Phim notably not HENG

695 Samrin 2 TCW 831 LY Nhoek 2 TCW 920 said that NUON Chea assigned him to be a courier between him and RUOS Nhim from 1960 1966 and he performed this role again after

696 1975 with NUON Chea’s trust NUON Chea’s contention that HENG Samrin had to be

summoned as his only character witnesses and his subsequent submission that the continued

exercise of his right to silence turned on HENG Samrin 2 TCW 831 was therefore unpersuasive

239 HENG Samrin 2 TCW 831 stated that Southwest forces started killing Easterners

immediately after the liberation “I knew about this clearly but I did not dare say anything

697 because if I said anything I would be in danger myself’ He stated that his younger brother

HENG Thai Secretary of Centre Division 290 was “arrested and killed by the Pol Pot

698 group His whole family was also killed his wife and 5 children” In evidence are documentary materials related to Sam Huoy alias Meas Tall alias Tal Secretary of Centre

Division 290 which includes annotations indicating that he was arrested on 23 May 1978 and

699 matters reported on 10 June 1978 and 3 July 1978

240 NUON Chea has emphasised “familial connections” between HENG Samrin 2 TCW

831 and a secretary of Sector 21 Touch Chaem alias Sot who married HENG Samrin’s 2

700 TCW 831 sister HENG Samrin 2 TCW 831 indicated that apart from one who died in

1959 all of his other younger sisters’ husbands were taken and killed and he also lost three

701 brothers in law There is documentary evidence in relation to Sot including annotations

702 indicating that materials were reported on 9 June 19 7 8 KE Pauk’s son KE Pich Vannak

told investigators before he died that when he was with his father in the East Zone there was

an order from the Centre to arrest HENG Samrin 2 TCW 831 but shortly afterwards HENG

694 T 18 April 2012 SAUT Toeung pp 43 44 73 T 19 April 2012 SAUT Toeung pp 19 21 47 49 Counsel for NUON Chea did not suggest to this witness that NUON Chea met with HENG Samrin 2 TCW 831 695 T 5 December 2016 SIN Oeng pp 11 63 64 696 T 6 December 2016 LY Nhoek pp 9 12 697 Interviews of HENG Samrin E3 1568 ERN Kh 00713960 00713961 ERN En 00651888 698 Interviews of HENG Samrin E3 1568 ERN Kh 00713941 00713942 ERN En 00651876 699 See e g S 21 Confession of SAM Huoy alias Meah Tal E3 1887 ERN Kh 00016611 00016752 700 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 20 701 Interviews of HENG Samrin E3 1568 ERN Kh 00713941 00713942 ERN En 00651876 702 Confession of Tauch Chem alias Sot E3 2803 ERN Kh 00086672 00086673 ERN En 00823443 S 21 TAUCH Chaem alias Sot E3 2804 ERN Kh 00086676 ERN En 00284070

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703 Samrin 2 TCW 831 disappeared Records from S 21 list “traitor groups in the East” and

704 make reference to “Rin 4th Division Chairman” As noted previously NUON Chea

emphasises that HENG Samrin 2 TCW 831 was secretary of the East Zone’s 4th

705 Division NUON Chea failed to substantiate how in light of such material HENG

Samrin’s 2 TCW 831 account of his escape in May 1978 and the limited evidence of any personal interactions between them after the 1960s he could reasonably be expected to give

favourable or unique character evidence on NUON Chea’s behalf

13 2 3 OUKBunchhoeun 2 TCW 951

241 Ben KIERNAN 2 TCE 89 interviewed OUK Bunchhoeun 2 TCW 951 in October

706 1980 Typed and handwritten notes of this interview are in evidence Stephen HEDER 2 TCE 87 interviewed OUK Bunchhoeun 2 TCW 951 in August 1990 typed notes of which

707 are in evidence together with an audio recording A biography of OUK Bunchhoeun 2

TCW 951 apparently prepared by Vietnamese or East German sources in December 1978 is

708 also in evidence OUK Bunchhoeun 2 TCW 951 is according to the NUON Chea

709 Defence “perhaps the second most important witness in Case 002 02” The justification for

this submission is that OUK Bunchhoeun 2 TCW 951 is said to have been “one level

below” SAO Phim in the East Zone civilian hierarchy in that from July 1975 until 25 May

1978 he was deputy secretary of Sector 21 responsible for economics administration

710 education and organisation

703 [Corrected 1] WRI of KE Pich Vannnak E3 35 ERN Kh 00340566 ERN En 00346153 BAN Seak alias HANG Phos 2 TCW 950 testified that Vannak was KE Pauk’s messenger and that is how he knew about this event see T 5 October 2015 BAN Seak p 17 SOU Soeun KE Pauk’s wife testified that she did not know about this order but her son always stayed with KE Pauk he was his driver see T 5 June 2015 SOU Soeun p 38 704 Name list of traitors in the Eastern Zone E3 2096 ERN Kh 00006751 ERN En 00182905 This list also makes reference to “Chhoeun Sector 21 Deputy Secretary” at ERN Kh 00006753 ERN En 00182908 705 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 20 706 Handwritten English Translation of OUK Bunchhoeun’s Interview with Ben Kieman Typed version E3 432 is the typed set of notes Handwritten English Translation of OUK Bunchhoeun’s Interview with Ben Kieman E3 523 ERN En 00517707 00517740 is the handwritten set of notes 707 [Corrected 1] Transcript of recorded interview with OUK Bunchhoeun on 04 08 1990 E3 387 is the typed set of notes E3 2774R E3 2775R E3 2776R are the audio recordings 708 Compilation of 21 Kurzbiographies produced by the German Democratic Republic Ministry of State Security Stasi ~~ 9720 E3 9720 ERN Kh 01306165 01306169 ERN En 01206272 01206274 709 Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and ‘Internal Purges’ Segment Leadership 1 April 2016 E392 para 18 710 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 20 Although NUON Chea does not appear to place any reliance on the following matters OUK Bunchhoeun 2 TCW 951 also stated that he was in charge of Sector 21 ’s liaison with Vietnam specifically the liaison post with Tay Ninh

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13 2 3 1 East Zone and Sector 21

242 We were not persuaded that OUK Bunchhoeun’s 2 TCW 951 role as the deputy

secretary of one sector in the East Zone substantiated NUON Chea’s characterisation of his

overall importance to Case 002 02 Although events in Sector 21 are relevant they are one

aspect of Case 002 02 OUK Bunchhoeun’s 2 TCW 951 interviews describe the presence of

711 multiple forces in the East Zone We are not persuaded that evidence from OUK

Bunchhoeun 2 TCW 951 would be sufficiently important or unique to justify summoning

him in the circumstances As we indicated in relation to HENG Samrin 2 TCW 831 there is

extensive evidence before the Trial Chamber related to the East Zone in general and Sector 21 in particular In particular the Trial Chamber heard from BAN Seak alias HANG Phos 2 TCW 950 who became District Secretary for Krauch Chhmar District in Sector 21 in 1978

712 and was related to KE Pauk’s wife SOU Soeum As recorded in the Annex to our opinion

there is extensive contemporaneous documentary evidence before the Trial Chamber related

to the East Zone and Sector 21 Evidence from OUK Bunchhoeun 2 TCW 951 would be

substantially repetitive of such evidence and NUON Chea’s submissions ignore the various

forces sent to the East Zone from elsewhere in the country

13 2 3 2 Factions and treasonous rebellion

243 NUON Chea submitted that OUK Bunchhoeun 2 TCW 951 was a prominent leader of

713 “treasonous rebellion” whose evidence was thus “unparalleled” and “irreplaceable” He submitted that OUK Bunchhoeun 2 TCW 951 would therefore offer insight into the heart of

to solve frontier disputes until contact was broken in 1977 see Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00379483 00379484 ERN En 00350203 ERN Kh 000379496 00379497 ERN En 00350214 Notes of 1980 Interview with OUK Bunchhoeun E3 432 ERN Kh 00583871 00583872 ERN En 00542181 He also stated that he performed a role as assistant to Phuong {see Notes of 1980 Interview with OUK Bunchhoeun E3 432 ERN Kh 00583869 00583871 ERN En 00542181 Our international colleagues at paras 264 and 271 place weight on OUK Bunchhoeun’s role on a liaison committee Given that there is documentary evidence that the Standing Committee discussed numerous Zone and Sector Liaison Committees with Vietnam OUK Bunchhoeun’s role on one such sector level committee does not alter our conclusion see Standing Committee Minutes of 23 March 1976 E3 218 ERN Kh 00000754 ERN En 00182654 Presentation of Comrade Ya “We agreed to set up the Zone Region and Sector Liaison Committees” ERN Kh 00000756 ERN En 00182656 Opinion and instructions from Comrade Deputy Secretary “Zone ” and Sector Liaison Committees were set up to maintain contacts with Vietnam There is detailed contemporaneous documentary evidence of higher level discussions with Vietnam This sheds better light than anything occurring at a sector level on one part of the border See e g Standing Committee Minutes E3 221 14 May 1976 Examination of the Reaction of Vietnam During the Fifth Meeting 711 Notes of 1980 Interview with OUK Bunchhoeun E3 432 ERN Kh 00583867 00583868 ERN En 00542178 00542179 describing the presence of Centre Divisions and Ta Mok’s Southwest Zone forces going into Sectors 23 and 24 in 1977 bringing Southwestern cadres then six months later moving into Sectors 20 22 712 T 5 October 2015 BAN Seak pp 9 10 T 6 October 2015 BAN Seak pp 40 41 55 713 Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and ‘Internal Purges’ Segment Leadership E392 1 April 2016 para 21

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his case namely that the CPK was not disciplined unified and pyramidal hierarchy but was

engulfed in constant internal turmoil with different and equally strong factions pursuing

714 competing agendas to seize control

244 According to OUK Bunchhoeun 2 TCW 951 he started hiding weapons in “early „715 1978 and became the head of a battlefield committee around 10 11 May 1978 with Phok

716 head of the Zone ammunition store as his deputy and Nin Neath as a member On 24 May

717 1978 the Centre began arresting people by calling them to meetings Armed opposition

commenced on 25 May 1978 after POL Pot arrested commanders and deployed troops along

718 Route 7 Phuong did not want to join the resistance and he was arrested and killed in June

719 1978 Available to NUON Chea was documentary evidence indicating that Phuong was

720 detained at S 21 but he did not request that it be admitted into evidence OUK

Bunchhoeun 2 TCW 951 describes his participation in resistance over the remainder of

721 1978 His account is substantially repetitive of other evidence before the Trial Chamber For example LONG Sat 2 TCW 1065 described being in the jungle with OUK Bunchhoeun

722 2 TCW 951 eventually travelling with him by helicopter to Ho Chi Minh

245 The Trial Chamber rejected various additional witnesses on factions proposed by NUON

Chea because it was satisfied that the evidence was of limited relevance or to the degree it

was generally relevant it was repetitive of other evidence heard by the Trial Chamber such as

MY Savoeun MEY Savoeun 2 TCCP 1040 VAN Mat alias Sales Ahmat 2 TCW 893

MEAS Soeurn MEAS Soeun 2 TCW 917 SOS Min 2 TCCP 244 KEO Leour 2 TCW

932 SOY Sao 2 TCW 1029 SEM Hoeum 2 TCW 943 CHHAE Heap 2 TCCP 275

714 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 25 715 Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00379502 00379505 ERN En 00350218 00350220 716 Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00379508 00379512 ERN En 00350223 00350226 717 Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00379507 00379508 ERN En 00350222 718 Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00379483 00379484 ERN En 00350203 ERN Kh 00379510 00379512 ERN En 00350225 719 Notes of 1980 Interview with OUK Bunchhoeun E3 432 ERN Kh 00583871 00583872 ERN En 00542181 720 See e g OCIJ S 21 Prisoners List 31 March 2016 E3 10604 which at 14502 identifies confession “P 322” for Phuong alias Sat Saphon Chief of East Zone Rubber Plantation This was available to the Parties on the Case File see S 21 Confession of VEUNG Chhaem also known as Sok Saphon alias Phuong IS 5 116 ERN Kh 00009797 00009935 ERN En 00183089 00183176 721 See paras 221 224 above 722 T 2 November 2016 LONG Sat pp 26 27 91

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723 HIM Han Rean 2 TCW 901 In addition BAN Seak alias HANG Phos 2 TCW 950

described being sent from the Central Zone to Krauch Chhmar District in 1978 SOS Romly alias Yusuf Romly 2 TCW 904 described representatives from the Central Zone and cadres

724 from the Southwest zone arriving in Trea and IT Sen 2 TCW 813 described SENG from

the Southwest Zone in Krouch Chhmar District holding the position of commune chief and

725 military chief of a commune We therefore reject the submission that evidence from OUK

Bunchhoeun 2 TCW 951 would be unparalleled or irreplaceable

246 As to the period before early 1978 according to OUK Bunchhoeun 2 TCW 951 he

was not a “traitor” and neither were people like SAO Phim HOU Yuon HU Nhim “the

leader of the North Zone” which could be a reference to KOY Thuon Chhouk and Chan

Chakkrei According to OUK Bunchhoeun 2 TCW 951 spurious reasons were given to say

726 that somebody was a traitor then people were tortured until they gave names OUK

Bunchhoeun 2 TCW 951 said that he was implicated in confessions and the matter was sent

to SAO Phim who declined to arrest him This led POL Pot and NUON Chea to stop trusting

SAO Phim so Chan became the secretary of sectors 23 and 24 OUK Bunchhoeun 2 TCW

727 951 said that NUON Chea educated Chan in this regard OUK Bunchhoeun 2 TCW 951 said he did not believe “any stories about rebellions in the POL Pot period because I myself

728 did nothing at all” In light of this it is improbable that evidence from OUK Bunchhoeun

2 TCW 951 would substantially assist the case advanced by NUON Chea

13 2 3 3 Internal purses and the armed conflict with Vietnam

247 There is extensive evidence before the Trial Chamber of internal purges and armed

conflict with Vietnam in the East Zone We have already referred to some of the evidence we

729 heard on these matters The Annex to our decision references numerous contemporaneous

telegrams documenting the progress of the armed conflict with Vietnam events that LONG

723 Decision on NUON Chea Defence Requests to hear Additional Witnesses pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 E443 21 September 2016 Decision on NUON Chea Defence Requests to hear Additional Witnesses pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 Full Reasons E443 10 31 March 2017 paras 37 38 724 T 8 January 2016 SOS Romly p 73 725 T 8 September 2015 IT Sen p 8 726 Notes of 1980 Interview with OUK Bunchhoeun E3 432 ERN Kh 00583863 00583869 ERN En 00542177 00542179 727 Notes of 1980 Interview with OUK Bunchhoeun E3 432 ERN Kh 00583878 00583879 ERN En 00542185 728 Notes of 1980 Interview with OUK Bunchhoeun E3 432 ERN Kh 00583882 00583884 ERN En 00542187 00542189 129 See paras 226 231 above

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Sat 2 TCW 1065 among others addressed in some detail Even if we focus on the period

before 1978 the nature of the contemporaneous documentary evidence is significant

248 As to purges before 1978 in materials related to Ly Phen alias Samrit is a written record

of interview conducted by Sector 21 Security on 12 June 1976 by chief interrogator “Phi” and

731 several other interrogators730 with numerous annotations In materials related to PECH Phan alias MAI Pha the Transportation Chairman of the Rubber Plantations in the East Zone

is an interrogator’s note dated 24 July 1977 stating that Bang Phuong arrested PECH Phan

732 and sent him to S 21 A later report records that security warned PECH Phan alias MAI

Pha for implicating Phuong and points were then extracted from his confessions and

733 questions raised within S 21 as to whether this was appropriate in the circumstances

Further still in the materials for Pen Chhe alias Chham Sarat or Savat Secretary of Chhlong

District in Sector 21 is a note assessing that his confession was “no different from that of MAI Phau who has been arrested by Brother Phuong and who talked about Brother Phuong

734 constantly” For BIN Ban Bo Secretary of Peam Chilaing District in Sector 21 a note

dated 7 September 1977 records persons implicated and questions whether matters could be

735 sent to “Brother Phim” secretly A further note records that names were taken out of the list

before it was sent to “Bang Phim” then “Khieu” queries whether the whole document should

736 be sent to “Bang Phim” and “keep silent” Another note contained within other materials

records that Bau had said that there were meetings at Zone 203 Agriculture and “Brother

737 Phim has requested clarification of this” In relation to TUY Pheng alias Phe the Secretary

of Kaoh Sautin a cover page dated 12 November 1977 states that his confession was

738 submitted to the Eastern Zone via Comrade Chan It is unfortunate that NUON Chea

730 L40 Colour Copy Excerpts from Confession of Li Phel alias Li Phen alias Samrit E3 3837 ERN Kh 00172688 00172698 ERN En 00807161 00807177 731 L40 Colour Copy Excerpts from Confession of Li Phel alias Li Phen alias Samrit E3 3837 ERN Kh 00172699 00172704 ERN En 00223138 00223142 732 Colour copy Excerpt of Confession of Pech Phan alias Mey Phau E3 1563 ERN Kh 00175187 ERN En 00827958 733 Colour copy Excerpt of Confession of Pech Phan alias Mey Phau E3 1563 ERN Kh 00175172 ERN En 00827936 734 Confession of Pen Chhe alias Chhaom Savat Secretary Chhlaung District Sector 21 East Zone E3 2484 ERN Kh 00309795 ERN En 00823942 735 Colour copy Excerpt of Confession of Bin Ban alias Bau E3 3668 ERN Kh 00174263 ERN En 00777935 and ERN Kh 00174273 ERN En 00777951 736 DC Cam Report on “At Risk” Documents E3 8468 ERN Kh 00081624 ERN En 01320345 737 Colour copy Excerpt of Confession of Pech Phan alias Mey Phau E3 1563 ERN Kh 00175172 ERN En 00827936 738 DC Cam Report on “At Risk” Documents E3 8468 ERN Kh 00081681 ERN En 01320428 {see also E3 4518 and E3 3693

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739 waived opportunities to address the Chamber on such documentary evidence In our view

such evidence from S 21 has the potential to shed greater light on purges in the East Zone

than further oral testimony from a deputy secretary of one sector Moreover KAING Guek

Eav alias Duch discussed some of the documentary evidence from S 21 concerning the

removal of names from confessions related to the East Zone including Sector 21 in order to

740 allow NUON Chea to send documents to SAO Phim for further implementation and arrest

In our view such evidence has the potential to shed clearer light on the issues in Case 002 02 compared to oral evidence from OUK Bunchhoeun 2 TCW 951

13 2 3 4 Treatment of targeted groups

249 In relation to the treatment of the Vietnamese the Closing Order alleges waves of killings of Vietnamese civilians in Prey Veng and Svay Rieng provinces specifically Sectors

741 “20 22 23 and 24” No such allegation is made in relation to Sector 21 Although there is a

742 separate reference to killings in Krauch Chmar and Khsach Kandal in the East Zone we are not persuaded that evidence from OUK Bunchhoeun 2 TCW 951 would be unique in this

743 regard

250 In relation to the treatment of the Cham the Closing Order contains allegations related to

events in Sector 21 of the East Zone among other places including in the Central Zone We

are not persuaded that OUK Bunchhoeun 2 TCW 951 is relevant to the allegations related to Trea Village from mid 1978 However the Closing Order also describes two Cham rebellions

in September and October 1975 in the East Zone the first in Koh Phal village an island in the

744 Mekong River the second in Svay Khleang village It is alleged that “district and

739 After disagreeing with other parties’ presentation of interviews during a document hearing on worksites on 26 August 2015 the defence for Nuon Chea repeatedly declined the opportunity to present key documents or respond to make observations on key documents presented by other parties in relation to the treatment of targeted groups see T 23 February 2016 El 390 1 p 5 ERN Kh 01208629 ERN En 01209228 security centres and internal purges see T 12 August 2016 E1456 1 p 4 ERN Kh 01345680 01345681 ERN En 01381154 the nature of the armed conflict {see T 3 November 2016 p 3 740 See T 14 June 2016 KAING Guek Eav pp 31 34 T 15 June 2016 KAING Guek Eav p 12 discussing E3 1688 ERN Kh 00226401 ERN En 00284069 a note from Duch to Pon to remove the name of Chhien Sector 22 brother Mon and brother Soe Further stating that “Brother II” advised on 25 February 1978 that the names of Soe Mon Soth Sector 21 Chien Sector 22 Tat and Sokh Division 170 and Tal Division 290

” “must be withdrawn if they appear in this confession 741 Closing Order para 797 742 Closing Order para 803 743 In Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00379493 ERN En 00350210 OUK Bunchhoeun 2 TCW 951 stated as follows “When Pol Pot was in good relationship with Vietnam again Vietnam sent those people back to him A number of them were killed This was like that So I understood that it was a problem” 744 Closing Order para 758

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745 subdistrict CPK cadres” were involved in suppressing those rebellions Allegations follow

in relation to later periods and connections are alleged between the treatment of the Cham in

746 East Zone and the Central or Old North Zone

251 As noted in the main body of the Trial Chamber’s decision NUON Chea did not

747 propose OUK Bunchhoeun 2 TCW 951 in relation to the treatment of the Cham Rather

the belated submission followed that OUK Bunchhoeun 2 TCW 951 should nevertheless be

heard during a trial segment focused on the treatment of the Cham on the basis that East Zone

military forces were involved in suppressing Cham rebellions at Koh Phal Svay Khleang and

748 Trea Village This motion included another belated submission questioning the exclusion of

749 Kroch Chhmar Security Centre from Case 002 02 NUON Chea had not questioned the

exclusion of Krauch Chhmar Security Centre when the scope of Case 002 02 was discussed

and settled upon No request was made to expand the scope of Case 002 02

252 The NUON Chea Defence’s assertions that the prosecution focused on alleged crimes against the Cham which took place after the arrival of CPK cadres from the Southwest Zone

750 in 1977 or that the Trial Chamber sought to “hide” evidence in relation the treatment of the

Cham in 1975 by avoiding “evidence which might incriminate present government

752 members”751 lack any substance The Trial Chamber heard extensive evidence of the Cham

rebellions in 1975 VAN Mat alias SALES Ahmat 2 TCW 893 worked in a commune

economics office in Krauch Chhmar District and described the repression of the Cham

753 rebellion on Koh Phal IT Sen 2 TCW 813 was based in Ampil and described the Cham

rebellion on nearby Koh Phal where he had family and said that the Khmer Rouge soldiers

754 could have come from the District or the Sector SOS Romly alias Yusuf Romly 2 TCW

745 Closing Order para 759 746 Closing Order paras 762 769 and 784 788 747 [Corrected 1] Annex B Updated Summaries of Witnesses Civil Parties and Experts no protective measures sought E305 4 2 8 May 2014 p 12 748 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 paras 19 20 749 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 paras 8 9 750 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 9 751 NUON Chea’s Request to Reconsider Admitting One Extract and to Admit Two Additional Extracts from the Human Rights Watch Report ’30 Years of Hun Sen’ E347 2 11 December 2015 para 11 T 8 September 2015 p 26 152 In its Severance Order for Case 002 02 the Trial Chamber selected numerous events from the East Zone including paragraphs addressing the Cham rebellions of 1975 753 T 9 March 2016 VAN Mat pp 50 52 76 E3 9323 ERN Kh 00275387 ERN En 0021842 754 T 7 September 2015 IT Sen pp 62 63 T 8 September 2015 IT Sen pp 13 14

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904 worked in the Trea commune office for the commune chief and described events in late

755 1975 and in May 1978 onwards SOS Ponyamin 2 TCCP 244 lived in Svay Khleang and

756 was involved in Cham rebellions in 1975 MAN Sles 2 TCCP 263 lived in Svay Khleang and described soldiers forcing the entire population out of Svay Khleang and said that Long

757 and PENG Heng the chief and deputy chief of Svay Khleang commune were involved NO

Sates alias Tas 2 TCCP 270 described Cham rebellions in October 1975 and evacuations

758 that followed MATH Sor alias Ahmat Safiyal 2 TCW 928 described being detained with

759 other girls and questioned by the district YSA Osman 2 TCE 95 described his research

760 related to Sector 21 including the rebellions in Koh Phal and Svay Khleang There is also potentially significant documentary evidence before the Trial Chamber from this period

761 including a telegram dated 30 November 1975 from Chhon to Brother Pol

253 The decisive factor in our conclusion that it was unnecessary to summon OUK

Bunchhoeun 2 TCW 951 in relation to the 1975 rebellions however was the relevance

which NUON Chea ascribes to those events In NUON Chea’s submission the suppression of

the 1975 rebellions was “at least as brutal as alleged treatment in the Central Old North

762 Zone in 1977 and the East Zone in 1978” This argument does little to assist NUON Chea

Even if it is established that the treatment to which Cham were treated in Sector 21 in 1975

was “at least as brutal” as the treatment to which they were subjected later on or in different

763 locations this would not appear to be exculpatory There is extensive evidence before the

Trial Chamber related to the events upon which NUON Chea wishes to focus in any event

Finally we note the Supreme Court Chamber’s emphasis on the need to examine and compare

events in different Zones when assessing the existence or not as the case may be of a

764 centrally devised policy

755 T 6 January 2016 SOS Romly pp 89 97 T 8 January 2016 SOS Romly pp 6 17 42 49 76 756 p 9 September 2015 SOS Ponyamin pp 48 52 757 T 29 February 2016 MAN Sles pp 58 59 73 758 T 28 September 2015 NO Sates pp 49 79 T 29 September 2015 NO Sates pp 5 28 759 T 13 January 2016 MATH Sor p 91 760 T 9 February 2016 YSA Osman pp 25 35 T 9 February 2016 YSA Osman pp 59 65 761 Telegram 15 to brother Pol About the people disrespect Angkar advised E3 154 ERN Kh 00008494 ERN En 00185064 00185065 cf DC Cam Report on “At Risk” Documents E3 8468 ERN En 00105211 762 NUON Chea’s urgent and consolidated request to expedite two already requested witnesses and summons four additional witnesses regarding the treatment of the Cham E370 29 September 2015 para 23 763 In relation to the Cham rebellion on Koh Phal OUK Bunchhoeun 2 TCW 951 stated to Stephen HEDER 2 TCE 87 that the “district authority went to Koh Phal back and forth” and the military in Krauch Chhmar ” “went to crack down on them See Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00105211 ERN En 00350213 764 Appeal Judgement F36 23 November 2016 para 963

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13 2 3 5 Otherwise unique or exculpatory evidence

254 We were unable to discern any other basis on which it might be said that OUK Bunchhoeun 2 TCW 951 offers exculpatory evidence for NUON Chea Although NUON

Chea did not propose him in relation to the treatment of former LON Nol officials according

to OUK Bunchhoeun 2 TCW 951 in April 1975 POL Pot issued a secret but widely announced policy of wiping out elements of the LON Nol regime purging from the sub-

765 district up and sweeping clean soldiers from second lieutenants up to generals Such

evidence would not appear to be exculpatory and does not require that he be summoned

255 OUK Bunchhoeun’s interviews describe various meetings that he attended in Phnom

766 Penh including the above discussed meeting in May 1975 The Trial Chamber heard evidence of various meetings and study sessions involving NUON Chea including from the

767 following persons EM Oeun TCCP 28 training session at Borei Keila CHEA Say

768 TCW 91 study sessions at Borei Keila and the Technological Institute ROCHOEUM

769 Ton alias PHY Phuon TCW 564 various study sessions MEAS Voeun 2 TCW 1008

770 Zone congresses in the West Zone NY Kan alias Kan TCW 487 West Zone assembly

meeting attended by NUON Chea LONG Norin party congresses held at the Olympic

stadium in Phnom Penh once per year with NUON Chea seated on the stage with POL

771 Pot SUONG Sikoeun alias Kung TCW 694 study session at Borei Keila in June

772 773 1976 KHIEV En TCW 320 smaller meetings chaired by NUON Chea PECH Chim

774 2 TCW 809 study sessions at Borei Keila in late 1975 and 1976 EK Hen TCW 164

775 study sessions at Borei Keila RUOS Suy TCW 570 study sessions at Ounalom Pagoda

776 Borei Keila or the Olympic Stadium CHHOUK Rin TCW 110 study sessions based on

765 Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00379486 ERN En 00350205 766 Notes of Recorded 1990 Interview with OUK Bunchhoeun E3 387 ERN Kh 00379488 00379489 ERN En 00350207 00350208 Notes of 1980 Interview with OUK Bunchhoeun E3 432 ERN Kh 00583873 00583874 ERN En 00542182 767 See e g T 23 August 2012 EM Oeun p 82 T 27 August 2012 EM Oeun pp 39 45 T 28 August 2012 EM Oeun pp 11 12 768 See e g T 20 September 2012 CHEA Say pp 29 37 70 71 769 See e g T 25 July 2012 ROCHOEM Ton pp 74 78 T 1 August 2012 ROCHOEM Ton pp 95 96 770 See e g T 2 February 2016 MEAS Voeun pp 15 20 68 71 T 4 October 2012 MEAS Voeun pp 44 46 54 771 See e g T 8 December 2011 LONG Norin pp 55 57 772 See e g T 6 August 2012 SUONG Sikoeun pp 74 79 773 See e g T 2 October 2012 KHIEV En p 9 T 1 October 2012 KHIEV En pp 33 37 774 See e g T 01 July 2013 PECH Chim pp 38 41 74 T 22 April 2015 PECH Chim pp 34 35 775 See e g T 3 July 2013 EK Hen pp 40 53 77 99 776 See e g T 25 April 2013 RUOS Suy pp 46 58 59

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777 Revolutionary Flag NEANG Ouch alias Ta San 2 TCW 803 meeting NUON Chea at a

778 yearly study session and PRAK Yut 2 TCW 938 study session for district secretaries of

779 the entire country including the 20 May 1975 meeting It is therefore unnecessary to

summon OUK Bunchhoeun 2 TCW 951

13 2 4 POE Saroeun 2 TCW 962

256 NUON Chea’s submissions in relation to POL Saroeun 2 TCW 962 were largely

780 speculative His primary submission was that POL Saroeun 2 TCW 962 “may offer

unique insight into preparations for rebellion and the participation and crackdown on East

781 Zone cadres” As described above there is extensive evidence before the Trial Chamber on

these matters A further factor is that Ben KIERNAN 2 TCE 89 interviewed POL Saroeun

782 2 TCW 962 in 1981 NUON Chea did not make a specific request to obtain the notes of

783 this interview

257 We nevertheless sought to evaluate matters in relation to which POL Saroeun 2 TCW

962 might testify weighing as above the potential significance of his evidence and other evidence before the Trial Chamber According to Ben KIERNAN 2 TCE 89 POL Saroeun

2 TCW 962 was deputy chief of the East Zone’s military staff and ran the East Zone’s

ammunition factory in Koh Sautin district Based on his interview with POL Saroeun 2

TCW 962 Ben KIERNAN 2 TCE 89 highlighted a meeting at Tuol Preap on 24 May

1978 when SAO Phim ordered POL Saroeun 2 TCW 962 to “seek out friends” and rebuild

777 See e g T 22 April 2013 CHHOUK Rin pp 66 68 T 23 April 2013 CHHOUK Rin pp 8 14 778 See e g T 10 March 2015 NEANG Ouch pp 38 47 T 11 March 2015 NEANG Ouch p 49 779 See e g T 19 January 2016 PRAK Yut pp 67 77 85 89 780 New Witness Civil Party and Expert List for Case 002 02 E307 4 24 July 2014 para 3 E307 4 3 24 July 2014 p 2 781 Nuon Chea’s Second Witness Request for the Case 002 02 Security Centres and ‘Internal Purges’ Segment Leadership E392 1 April 2016 para 26 782 See [Corrected 1] Book by Ben KIERNAN entitled “The Pol Pot Regime Race Power and Genocide in Cambodia under the Khmer Rouge 1975 79’’ E3 1593 ERN Kh 00637952 ERN En 01150204 p 395 fn 37 for reference to an interview with POL Saroeun in Takeo on 27 August 1981 KIERNAN 2 TCE 89 describes POL Saroeun as being until May 1978 “deputy chief of the Zone military staff [ ] who ran the Zone ” ammunition factory in Koh Sautin district 783 Cf NUON Chea’s Rule 93 Request to obtain any available records of relevant interviews of other individuals mentioned by Ben KIERNAN 2 TCE 89 relating to local company commander who defected to Thailand in 1977 another CPK military defector who reached Thailand at the end of 1977 and a “1977 defector” with knowledge of Chan Chakrei’s alleged involvement in coups d’etat NUON Chea’s First Rule 87 4 Request to Call Additional Witnesses and Rule 93 Request for Additional Investigations in Relation to the Case 002 02 Trial Segment on S 21 Security Centre and ‘Internal Purges’ E391 24 March 2016 paras 27 33 36 b The Trial Chamber rejected the Rule 93 Request because it was untimely and there was limited identifying information concerning the alleged defectors see Decision on NUON Chea Defence Requests to hear Additional Witnesses pursuant to Internal Rule 87 4 E391 E392 E395 E412 and E426 Full Reasons E443 10 31 March 2017 paras 34 36

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bridges with the Vietnamese SAO Phim told POL Saroeun 2 TCW 962 that his troops

should not attack KE Pauk’s forces but remain alert to see what happened next On his way home from Tuol Preap POL Saroeun 2 TCW 962 noticed KE Pauk’s forces checking the

number of his motorcycle and he “suspected something was up” The next day on 25 May

784 1978 KE Pauk “struck”

258 Ben KIERNAN 2 TCE 89 describes another meeting on or around 27 May 1978

involving some 20 people including POL Saroeun 2 TCW 962 SAO Phim decided to travel

to Phnom Penh but told others to “hold off’ in the meantime Thereafter when matters

deteriorated POL Saroeun 2 TCW 962 took command of three companies of the 75th

Regiment composed of troops attached to Zone artillery units 300 troops in total who

785 fought against Centre forces through to Suong then into the forest to the north As

discussed above however the Trial Chamber heard evidence on the events surrounding May

786 1978 It is therefore unnecessary to summon POL Saroeun 2 TCW 962

13 2 5 Conclusions

259 We recognise that there is some force in the opinion expressed by our international colleagues that it would have been preferable if HENG Samrin 2 TCW 831 OUK Bunchhoeun 2 TCW 951 and POL Saroeun 2 TCW 962 had appeared before the Trial

Chamber in Case 002 02 The decision for the Trial Chamber however is whether it is

necessary to initiate the process to compel testimony by issuing summonses Lor the reasons

set out in this opinion we concluded that it was unnecessary to venture down that path and we

declined to summon them on the basis of Internal Rule 87 a c and e We were not

persuaded that evidence from either person was sufficiently important or exculpatory There is

extensive evidence before the Trial Chamber on all the matters on which NUON Chea sought

evidence from these persons

784 [Corrected 1] Book by Ben KIERNAN entitled “The Pol Pot Regime Race Power and Genocide in Cambodia under the Khmer Rouge 1975 79” E3 1593 ERN Kh 00637952 ERN En 01150204 p 395 785 [Corrected 1] Book by Ben KIERNAN entitled “The Pol Pot Regime Race Power and Genocide in Cambodia under the Khmer Rouge 1975 79” E3 1593 ERN Kh 00637956 ERN En 01150206 p 398 786 See paras 220 223 above Our international colleagues place weight on Ben KIERNAN’s 2 TCE 89 ranking of POL Saroeun 2 TCW 962 in sixth position in the East Zone said to be one place below HENG Samrin 2 TCW 831 As we note in the second paragraph of our opinion however Ben KIERNAN 2 TCE 89 assessed HENG Samrin 2 TCW 831 to hold a relatively junior position in the CPK’s overall power structure That he placed POL Saroeun 2 TCW 962 below HENG Samrin 2 TCW 831 reinforces our overall conclusion in relation to POL Saroeun 2 TCW 962

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260 Although we respect our international colleagues’ conclusion that evidence from these

persons would have been non repetitive because they are among some of the most senior

persons from the East Zone to have survived purges such that they are said to be better

positioned to describe those events we prioritised evidence from senior persons sent to purge

the East Zone such as IENG Phan 2 TCW 1046 CHUON Thy CHUON Thi alias THI

Ov’s 2 TCW 859 and CHHOUK Rin alias Sok TCW 110 Combined with the extensive

evidence related to S 21 and the evidence heard from persons already in the East Zone

identified in our opinion we concluded that it was unnecessary to summon the requested

persons We will however carefully evaluate any inferences that should be drawn in NUON Chea’s favour including by reference to the interviews with HENG Samrin 2 TCW 831 and

787 OUK Bunchhoeun 2 TCW 951

13 3 Opinion of the Minority Judges Jean Marc LAVERGNE and Claudia FENZ

261 At the outset we stress that the minority opinion fully adheres to the description of the legal framework provided in paragraphs 9 to 17 of the current decision The Trial Chamber in

Case 002 02 has consistently assessed the admission of evidence and decided on requests to

call witnesses in accordance with the criteria set out in Internal Rule 87 3 In the

overwhelming majority of cases the issues to be determined were the ones addressed by IR

87 3 a which allows rejection of evidence where it is found to be irrelevant or repetitious In making that assessment the Trial Chamber had regard to the prima facie standards of

788 relevance reliability and authenticity Similarly in the Case 002 01 judgement the Trial

Chamber held that “evidence put before the Chamber must be prima facie relevant and

789 reliable” A final evaluation of the evidence as a whole and what weight it will be given

will be carried out in the verdict

787 In Case 002 01 the Supreme Court Chamber concluded that proceeding in such a way would not prejudice NUON Chea while contributing to the efficiency of the proceedings See Appeal Judgement F36 23 November 2016 paras 38 155 788 See for example Decision on NUON Chea Defence Requests to hear Additional Witnesses E443 10 30 March 2017 paras 27 37 Decision on NUON Chea Defence Request E448 to call two additional witnesses E448 2 14 December 2016 para 4 Decision on Motions to Hear Additional Witnesses on the Topic of the Treatment of the Vietnamese E380 2 25 May 2016 para 18 Decision on International Co Prosecutor’s Request to Admit Written Records of Interview Pursuant to Rules 87 3 4 and To Call Four Additional Witnesses for Upcoming Case 002 02 Segments E319 36 2 25 May 2016 para 8 confidential Decision on NUON Chea’s First Rule 87 4 Request to Call One Additional Witness and to Admit One Interview for the Case 002 02 Trial Segment on the Phnom Kraol Security Centre E390 2 4 May 2016 para 3 Reasons following Decision on the NUON Chea Defence’s Consolidated Rule 87 4 Request to hear Additional Witnesses for the First Case 002 02 Trial Segment E346 3 31 March 2016 para 31 confidential 789 Case 002 01 Trial Judgement E313 7 August 2014 para 26

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262 Finally we note that according to its own findings where several individuals are

proposed to be heard on similar facts or issues the Chamber shall give preference to those

whose proposed evidence is sought by one or more parties to the proceedings covers multiple

790 trial topics or are likely to have greater relevance or probative value

263 We note that both the requesting Party and the majority opinion rely heavily on Ben KIERNAN According to his interview with KIERNAN HENG Samrin 2 TCW 831 joined

the party in 1961 and became the chief of the 126th Zone Regiment in 1973 which was part

791 of the 1st Division of the East Zone After the liberation of 17 April 1975 HENG Samrin

2 TCW 831 stayed in Phnom Penh for about three months and was then sent back to the

792 East Zone specifically to Prey Veng In early 1976 he gathered troops and took the command of the East Zone’s 4th Division based in Krek where he remained until early

793 794 1978 The 4th Division had approximately 8 000 troops in total but no tanks and was

795 responsible for patrolling Highway 7 HENG Samrin 2 TCW 831 was also deputy chief

of staff for the East Zone’s military forces and apparently a member of the Zone

796 Committee KIERNAN’s analysis of the military chain of command in the East Zone tends

to show that HENG Samrin is the most senior military cadre of this zone who survived the

797 purges

790 See above para 15 791 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651878 192 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651880 00651893 793 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651886 according to HENG Samrin the East Zone’s 5th Division was created in early 1977 and it had about 5 000 troops see Ben Kieman Genocide and Resistance in South East Asia Documentation Denial and Justice in Cambodia and East Timor New Brunswicj NJ Transaction 2008 D269 5 1 p 80 ERN En 00488219 794 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651893 795 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651893 796 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 006518886 see also Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651892 00651893 stating that he became Deputy Chief of Eastern Zone General Staff in early 1976 after the creation of the 4lh Division in early 1976 out of other elements 797 Book edited by Ben KIERNAN Genocide and Democracy in Cambodia E3 3304 1993 ERN En 00430242 p 15 In Table 2 B which describes “the Democratic Kampuchea Military Chain of Command” HENG Samrin ranks in the fifth position in the Eastern Zone All individuals ranked in more senior positions SAO Phim CPK Zone Secretary SENG Hong CPK Zone Deputy Secretary KEV Samnang Chief of the Zone Military Staff LY Pheng Chief Political Commissar allegedly committed suicide or were executed following purges Further according to the same table three Divisions were placed under the authority of the East Zone The 3rd Division commander POEU Hak was allegedly executed in 1976 his successor KRY was allegedly executed in 1978 PHAN and HENG Kim respectively political commissar and CPK Secretary of the 4th

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264 According to his interviews with KIERNAN and HEDER OUK Bunchhoeun 2 TCW

951 became deputy secretary of Sector 21 in charge of administration controlling the

economy “mass organization” and the “foreign work” in July 1975 Whereas “Soh” the

798 sector secretary was in charge of the army and security OUK Bunchhoeun 2 TCW 951 held this position until May 1978 when he started opposing POL Pot and joined the

799 resistance OUK Bunchhoeun 2 TCW 951 was also in charge of Sector 21’s liaison with

Vietnam specifically the liaison post with Tay Ninh to solve frontier disputes until contact

800 was broken off in 1977 He also performed a role as an assistant to Phuong Chief of the

801 East Zone rubber plantation and full rights member of the Central Committee KIERNAN’s analysis of the military chain of command in Sector 21 tends to show that OUK Bunchhoeun

802 is the most senior cadre of this sector who survived the purges

265 As regards POL Saroeun 2 TCW 962 according to HENG Samrin 2 TCW0831 ’s

interview with KIERNAN he was the deputy chief of the East Zone military in charge of

803 equipment and of an ammunition factory at Koh Sautin KIERNAN identifies him as 2nd

804 Deputy Chief of the East Zone military staff below HENG Samrin 2 TCW 831 In an

interview with Stephen HEDER MAT Ly mentions that POL Saroeun was part of the East

Zone military and more precisely that “[h]e was division level economics for the [East]

Division were allegedly executed in 1976 and 1978 PAEN Cheuan CPK Secretary of the 5th Division was allegedly executed in 1978 798 Handwritten English Translation of OUK Bunchhoeun Interview with Ben Kieman Typed Version E3 432 30 September 1980 ERN En 00542181 see also Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350203 See OCIJ S 21 Prisoners List 31 March 2016 E3 10604 p 522 ERN En 01222849 which at entry 12681 identifies TAUCH Chem alias Sot as the Secretary of Sector 21 of the East Zone who entered S 21 on 5 June 1978 See also Book edited by Ben KIERNAN Genocide and Democracy in Cambodia E3 3304 1993 ERN En 00430242 p 15 According to KIERNAN’s analysis in Table 2 C which describes the Chain of Command in “Region” 21 in the East Zone the CPK Secretary of sector 21 was executed in 1978 799 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350203 800 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350203 00350214 Handwritten English Translation of OUK Bunchhoeun Interview with Ben Kieman Typed Version E3 432 30 September 1980 ERN En 00542181 801 Handwritten English Translation of OUK Bunchhoeun Interview with Ben Kieman Typed Version E3 432 30 September 1980 ERN En 00542176 and 00542181 See OCIJ S 21 Prisoners List 31 March 2016 E3 10604 which at 14502 identifies Phuong alias Sat Saphon as the Chief of East Zone Rubber Plantation 802 Book edited by Ben KIERNAN Genocide and Democracy in Cambodia E3 3304 1993 ERN En 00430242 p 15 See Table 2 ~ which describes “the Democratic Kampuchea Military Chain of Command” in particular at Sector 21 of the East Zone level 803 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651899 Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 5593 30 December 1991 ERN En 00419440 where the name Hem Samin and the location of Koh Sautin appears to be legible while they are not mentioned in the retyped version of this document 804 Book by Ben Kieman Genocide and Democracy in Cambodia confidential E3 3304 p 15 ERN En 00430242

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805 Military Zone” POL Saroeun 2 TCW 962 is said to have been among the 20 or so people

806 at the meeting with SAO Phim on 27 May 19 7 8 HENG Samrin 2 TCW 831 suggests that

after this meeting POL Saroeun 2 TCW 962 led three companies of 300 men and engaged

807 many times in fighting against Centre forces POL Saroeun 2 TCW 962 is also said to

have attended a meeting in Memot in September 1978 soon after which HENG Samrin 2

808 TCW 831 crossed the border to Vietnam KIERNAN’s analysis of the military chain of command in the East Zone tends to show that POL Saroeun is the second most senior military

809 cadre of this zone after HENG Samrin who survived the purges

266 While the Chamber heard a number of witnesses on the topic of the Internal Purges

including on the resistance that emerged within the East Zone against POL Pot810 and the

811 alleged coup d’état attempt against the CPK leaders in Phnom Penh such witnesses held a

much lower rank than HENG Samrin 2 TCW 831 OUK Bunchhoeun and POL Saroeun 2

TCW 962 within the East Zone and had had minor roles in the events that unfolded there in

1978 We recall that HENG Samrin was the commander of the 4th Division and that he had

direct contact with SAO Phim According to his interview with KIERNAN HENG Samrin

2 TCW 831 was with SAO Phim before the “coup” and when the latter gave the order to

812 fight against POL Pot HENG Samrin 2 TCW 831 further stated that he was the one who

805 Transcript of Recorded Interview with MAT Ly in 1990 E3 390 9 April 2012 ERN En 00436849 806 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651899 00651900 OUK Bunchhoeun describes a meeting that occurred in August 1978 to which comrade Sabun comrade Phok comrade Nal comrade Kai comrade HENG Samrin comrade POL Saroeun and comrade KOAM Meadan participated The meeting was held to discuss a request from CHEA Sim on combatants who had fled from Kampong Chhnang airport and where comrade CHAN Chim the assistant of the ministry of communication came to tell them that POL Pot “had to kill all the people in the East Zone” Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350227 00350228 see also Transcript of Recorded Interview with MAEN Chhân and CHEY Sophea on 07 08 1990 confidential E3 389 7 August 1990 ERN En 00434377 00434378 807 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651900 00651901 see also Transcript of Recorded Interview with MAEN Chhân and CHEY Sophea on 07 08 1990 confidential E3 389 ERN En 00434377 00434378 T 2 November 2016 2 TCW 1065 pp 86 91 808 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651902 006519023 809 Book edited by Ben KIERNAN Genocide and Democracy in Cambodia E3 3304 1993 ERN En 00430242 p 15 In Table 2 ~ which describes “the Democratic Kampuchea Military Chain of Command” POL Saroeun ranks in the sixth position and HENG Samrin in the fifth position in the Eastern Zone All individuals ranked in more senior positions SAO Phim CPK Zone Secretary SENG Hong CPK Zone Deputy Secretary KEV Samnang Chief of the Zone Military Staff LY Pheng Chief Political Commissar allegedly committed suicide or were executed following purges 810 See T 17 August 2016 MEY Savoeun pp 51 60 811 See T 28 June 2016 CHHUN Samorn pp 21 25 33 34 39 41 65 69 89 812 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651889 The Minority considers that the

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813 then “gave the order directly to the military” A review of HENG Samrin’s interview with

KIERNAN shows that he would have been in a position to clarify the nature and details of

the events unfolding and to identify the participants to an alleged rebellion Furthermore it is

very likely that HENG Samrin 2 TCW 831 would have been able to provide particularly

relevant evidence as to the organisation of the possible resistance against the forces of RAK in

charge of purging and fighting the East Zone soldiers814 and as to whether as NUON Chea

claims some of the crimes of which he is accused were committed by SAO Phim and other

members who were out of the control of the CPK

267 In addition as regards the policies set out at the meeting of 20 May 1975 we note that in

his interview with KIERNAN HENG Samrin 2 TCW 831 offers a detailed account of how

the meeting unfolded noting that POL Pot spoke little and only about “big general principles” and about the abolition of religion while NUON Chea did most of the talking the “consciousness work” and the propaganda NUON Chea allegedly spoke about the treatment

of the monks the Vietnamese the LON Nol officials and the abolishment of the money and

815 markets According to HENG Samrin 2 TCW 831 both POL Pot and NUON Chea

reportedly stated that “it was important to look after Vietnam and those who came from Vietnam” In his interview with KIERNAN HENG Samrin 2 TCW 831 reportedly stated

that “look after” meant to “kill them” and suggested that this was the basis to purge all Khmer

people who went to Vietnam to study after the 1954 Geneva Conference and came back later

816 to Cambodia as they were accused of being spies The interview also raises the question as to whether when discussing the treatment of the LON Nol officials the term “komchat”

which means “to remove from the framework” was used rather than “komtec” which means

817 “to kill” The Supreme Court Chamber in its Appeal Judgement in Case 002 01 addressed

this issue and found that the interview raises a number of “issues relevant to the charges in

Case 002 01 some of which would have been clarified through the live testimony of HENG

term “coup” may be understood to refer to acts of the Centre directed amongst others against the cadres of the East Zone 813 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651889 814 See Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651890 00651903 815 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651883 00651885 816 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651885 817 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651884

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818 Samrin” The Supreme Court Chamber also noted that a possible interpretation of the

words that according to HENG Samrin 2 TCW 831 were used at the meeting could be

exonerating but underlined that the interview notes were before the Chamber and that it was “unlikely that HENG Samrin’s testimony would have produced significant additional

819 exonerating information in relation to the meeting on 20 May 1975” While acknowledging

the Supreme Court Chamber’s finding in this regard we find that in the current case there is

uncertainty concerning the precise meaning of words recorded in an out of court statement as

reportedly spoken by an Accused Therefore hearing an in court clarification of these words from HENG Samrin 2 TCW 831 is obviously relevant to ascertaining the truth and

assessing NUON Chea’s responsibility in particular as this goes to the acts and conduct of an Accused In these circumstances it is always appropriate to hear the oral testimony of the

author of the statement and to give the parties an opportunity to examine him particularly

where the potential evidence is directly relevant to matters which are at the heart of the

charges and appears to contain both exculpatory and incriminating aspects such as in this

case

268 Additionally we wish to stress that the scope of Case 002 1 is different from Case

002 02 as it encompasses the treatment of Vietnamese Cham Buddhists and former Khmer Republic officials and includes charges of genocide and crimes against humanity committed

820 against these groups all matters on which this proposed witness may have testified Despite

having heard numerous witnesses Civil Parties and experts in relation to the treatment of the

targeted groups we are convinced that HENG Samrin as the future commander of the 4th

Division of the East Zone as one of the few surviving high ranking cadres who personally

attended the meeting of 20 May 1975 could have provided particularly relevant testimony on how this meeting unfolded the roles played by POL Pot and NUON Chea the policies that

were disseminated on that occasion and if and how they were later implemented at the Zone

821 level

818 Case 002 01 Appeal Judgement F36 23 November 2016 para 154 819 Case 002 01 Appeal Judgement F36 23 November 2016 para 154 820 See above paras 25 40 68 89 821 Neither minutes nor any other contemporaneous document relating to the 20 May 1975 meeting are available in the case file With the exception of HENG Samrin SIN Song MAT Ly and CHEA Sim all individuals heard by Ben KIERNAN on this matter are deceased {see Book by Ben KIERNAN The Pol Pot Regime Race Power and Genocide in Cambodia under the Khmer Rouge 1975 79 E3 1593 1996 ERN En 001150024 01150026 pp 55 59 Three witnesses PRAK Yut 2 TCW 938 SAO Sarun 2 TCW 1012 PHAN Van alias KHAM Phan 2 TCW 1011 and one Civil Party KLAN Fit TCCP 185 provided in court evidence which on a prima facie basis may relate to the meeting of 20 May 1975 While all concur that there was

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269 We consider in particular that it would have been important to hear from HENG Samrin

whether or not he could clarify his recollection of the instructions given by POL Pot and NUON Chea concerning the treatment of Vietnamese and the implementation of these instructions In his interview with KIERNAN HENG Samrin stated that the killings of

Vietnamese started in 1976 and added that “it was not POL Pot and NUON Chea who

ordered this it was the implementing level who said this They even ordered husbands to kill

their own wives who were Vietnamese This happened but it happened little [ ] If the wife stayed she would be killed and if they killed the wife and children it would be hard for the

husband to live with And they even went so far as to kill those of us who were attached to

„822 their wives and children The testimony of HENG Samrin in this regard could not only have been conducive to ascertaining the truth but could also have been potentially

exculpatory when it comes to the assessment of NUON Chea’s responsibility

270 Having assessed the criteria set out in the Legal Framework above we find that HENG

Sarmin’s evidence was prima face relevant non repetitious and should have been heard In

reaching that conclusion we considered that he appears to be the most senior cadre of the East

Zone to have survived the purges that he would have been able to testify with respect to

multiple trial topics and was better positioned to provide testimony on key issues when

compared with other witnesses who testified in this case

271 Similarly we note that in his interview with HEDER OUK Bunchhoeun 2 TCW 951

offers a detailed account of the policies set out by the Party and POL Pot in the lead up to the

a very large attendance they are inconsistent notably when it comes to the speakers the location of the meeting and the content of the speeches PRAK Yut 2 TCW 938 remembered that ~~ ~~~ SO Phim and POL Pot presided the meeting She was not sure about NUON Chea and KHIEU Samphan because “at that time she didn’t know them well” She cannot remember the kind of topics discussed in the meeting except that the main topics were first about “the creation of cooperatives” and second about “the re establishment of Pagodas” SAO Sarun 2 TCW 1012 stated that he saw Nuon Chea and Pol Pot making presentations Both of them “talked about political matters cooperative organization currency prohibition market and monastery closings and stated that ” they would be reopened in the future However he did not hear POL Pot or NUON Chea talking about the Vietnamese matter KLAN Fit TCCP 185 remembers having attended studies sessions lead by NUON Chea alone with a large attendance He remembers that people attending the study sessions “were educated on how to understand how to manage our country [ ] to maintain this independence [and ] to make sure we can ensure peace and order” He further stated that his “Khmer language was very embryonic” at that time He could not read and write Khmer very well [ ] The party discipline was discussed but he could not recall the details PHAN Van 2 TCW 1011 merely recalled that he accompanied his father to Phnom Penh but he did not attend the meeting himself and was therefore unable to indicate who spoke and what was discussed T 19 January 2016 PRAK Yut pp 85 89 T 21 January 2016 PRAK Yut pp 43 66 67 T 6 June 2012 SAO Sarun pp 32 35 44 45 60 62 T 30 March 2016 SAO Sarun pp 32 35 T 11 December 2012 PHAN Van pp 93 96 T 12 December 2012 PHAN Van pp 35 37 14 December 2012 PHAN Van pp 26 27 T 10 January 2012 KLAN Fit pp 101 103 822 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651884

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liberation of Phnom Penh of April 1975 in relation to religion including the treatment of the

Buddhists and the Cham to the treatment of the Vietnamese and the LON Nol officials on

823 the cooperatives the division of population in classes and the production of rice He also described the meeting convened by POL Pot in May 1975 at the Kampuchea Soviet

Technology School where the new policy on the implementation of the socialist revolution

824 was announced According to OUK Bunchhoeun POL Pot called “district level cadres and sector level cadres military cadres ranging from battalion level and above throughout the

825 country” to participate to this meeting In addition OUK Bunchhoeun 2 TCW 951 could

have provided a particularly relevant insight from the perspective of deputy secretary of

826 Sector 21 on the internal purges in the East Zone describing the sequence of events that

according to him led to POL Pot’s loss of trust in the cadres in the East Zone the alleged coup organised by Chakrey against POL Pot the subsequent arrests and the clash between the

Central forces and the East Zone forces in 1978 In his interview with HEDER OUK

Bunchhoeun 2 TCW 951 also described a meeting which occurred in August 1978 following these clashes to which HENG Samrin 2 TCW 831 and POL Saroeun 2 TCW

962 participated amongst others and at which they tried to establish if POL Pot had

betrayed them or if the clashes were the result of a coup d’état orchestrated by SON Sen and

827 Ke Pauk against POL Pot Further as head of the Vietnam Cambodian Liaison Committee

for Sector 21 from 1977 OUK Bunchhoeun 2 TCW 951 could provide evidence on the

828 relationship and conflict with Vietnam from 1977 As regards the treatment of the Cham

we also note that the Cham rebellions of 1975 described in the Closing Order occurred in the Kroch Chhmar district in Sector 21 and that the Trea Village security centre where Chams

829 were allegedly killed is also located in the Kroch Chhmar discrict Sector 21 As deputy

830 secretary of Sector 21 from July 1975 until May 19 7 8 OUK Bunchhoeun could have

823 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350203 00350205 824 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350206 00350207 825 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350206 826 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350214 827 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350228 828 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350214 Handwritten English Translation of OUK Bunchhoeun’s Interview with Ben KIERNAN Typed Version E3 432 30 September 1980 ERN 00542181 829 Closing Order paras 753 761 784 789 830 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350203

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provided evidence on the implementation of the policy against the Cham in his Sector For example in his interview with HEDER he describes the suppression of two Cham Muslim

831 movements since the early stages of Democratic Kampuchea Having assessed the criteria

set out in the Legal Framework above we find that OUK Bunchhoeun’s evidence was prima

facie relevant non repetitious and should have been heard In reaching that conclusion we

considered that he appears to be the most senior cadre of Sector 21 in the East Zone to have

survived the purges that he would have been able to testify with respect to multiple trial

topics and was better positioned to provide testimony on key issues when compared with

832 other witnesses who testified in this case Further as noted above we find that because of

the potentially inculpatory nature of his evidence it was necessary to afford the NUON Chea

Defence with an opportunity to examine him

272 Finally as regards POL Saroeun 2 TCW 962 we note that the information regarding

this proposed witness is relatively scarce compared to the other two witnesses However we

note that according to HENG Samrin 2 TCW 831 POL Saroeun 2 TCW 962 was present

at the meeting that occurred in May 1978 where a number of East Zone high ranking

individuals met to discuss and organise the resistance against POL Pot and to seek the support

of the Vietnamese to do so whereas OUK Bunchhoeun 2 TCW 951 places him at a similar

833 meeting in August 19 7 8 According to Ben KIERNAN who interviewed him POL Saroeun

was 2nd Deputy Chief of the East Zone military staff and his involvement at the military zone

834 level is corroborated by HENG Samrin and OUK Bunchhoen He also played an active role in fighting against the forces under POL Pot’s control and attended important meetings where

allegedly decisions to rebel against the CPK Leaders in Phnom Penh were made Considering

his position at the time we find that in the absence of the testimony of HENG Samrin it

would have been relevant to hear POL Saroeun 2 TCW 962 ’s evidence on these matters

and because of his position at the time he would not have been repetitive of other evidence

before the Chamber

831 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350206 832 See above paras 68 89 93 144 833 Retyped from a Handwritten Interview of CHEA Sim Phnom Penh 3 Dec 1991 and HENG Samrin Phnom Penh 2 Dec 1991 E3 1568 30 December 1991 ERN En 00651899 00651901 Transcript of Recorded Interview with OUK Bunchhoeun on 04 08 1990 E3 387 4 August 1990 ERN En 00350227 00350228 834 See above para 271

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273 We therefore disagree with the majority’s conclusion not to summons these three

witnesses as we consider that they would be in the position of providing evidence prima facie

relevant to key issues within the scope of Case 002 2 and non repetitious

274 The Chamber requested WESU to approach the three witnesses proposed by the NUON

Chea Defence to assess their availability to testily before the Chamber and sent individual

letters to the offices of HENG Samrin 2 TCW 831 OUK Bunchhoeun 2 TCW 951 and

835 POL Saroeun requesting a meeting with a WESU staff to assess their availability to testify Regretfully the office of HENG Samrin 2 TCW 831 refused to receive such letter the office of OUK Bunchhoeun 2 TCW 951 did not respond whereas the office of POL

836 Saroeun indicated that he was too busy to meet with the WESU staff As stated in the

837 minority opinion in the witness decision in Case 002 01 we consider that it is important

that the Trial Chamber be perceived as treating equally all those whose testimony is deemed

to be conducive to ascertaining the truth or furthering justice Despite their apparent lack of

cooperation with the Court we believe they should and could have been summoned to testify

in Case 002 02 in light of the prima facie relevant and non repetitive evidence they could have provided

275 Finally we note that the Chamber has heard a number of testimonies relevant to internal

838 purges and internal rebellions during the topic specifically dedicated to the Internal purges

839 as well as during other trial topics in Case 002 02 We also acknowledge that as noted by

our colleagues extensive contemporaneous documents relevant to these matters have been

840 admitted into evidence in Case 002 02 Having these factors in mind we will consider the

835 Letter from the Trial Chamber to WESU E29 504 16 May 2016 Letter from Trial Chamber to WESU E29 503 16 May 2016 Letter to Trial Chamber to WESU E29 502 16 May 2016 836 WESU Report confidential E29 504 2 2 September 2016 Letter from WESU to His Excellency Lieutenant General MAM Sam E29 504 1 6 June 2016 Letter from Army Headquarters confidential E29 504 2 1 17 June 2016 Letter from WESU to His Excellency UM Sarith E29 503 1 22 June 2016 Letter from WESU to His Excellency LENG Peng Long E29 502 1 22 June 2016 837 See Final Decision on Witnesses Experts and Civil Parties to Be Heard in Case 002 01 E312 7 August 2014 para 109 838 18 individuals were heard during the Internal Purges trial topic alone 9 of whom proposed by the NUON Chea Defence on the internal factions CHIN Saroeun 2 TCW 1028 MY Savoeun MEY Savoeun 2 TCCP 1040 SOY Sao SUOY Sav 2 TCW 1029 SEM Om SEM Am 2 TCW 1031 CHHORN Vom 2 TCW 1036 CHEAL Choeun CHIEL Chhoeun 2 TCW 960 HUON Choeurm HUON Choeum 2 TCW 1037 LONG Vonn LONG Vun 2 TCW 971 NUON Trech TES Ol TES Trech 2 TCW 1060 839 See for example KEO Kin KEV Kin 2 TCW 910 Kampong Chhang Airport VAN Mat alias SALES Ahmat 2 TCW 893 Treatment of the Cham and PRAK Khom PRAK Khan 2 TCW 931 S 21 Security Centre 840 See above paras 217 218 229 231

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impact of the absence of in court testimony of these three witnesses when assessing all

available evidence for the verdict

FOR THE FOREGOING REASONS THE TRIAL CHAMBER

On the Tram ~~~ Cooperatives and Kraing ~~ Chan Security Centre trial topic

REJECTS the request to summons the following proposed witnesses and Civil Parties SOK Sim 2 TCW 922 TUON Taem 2 TCW 875 TOEM Hy 2 TCW 833 TEP Ngoen 2

TCW 930 SAO Lan 2 TCCP 290 ORN ORM Em 2 TCCP 297 SENG Sivutha’s 2

TCCP 218 SAUT Saroeun’s 2 TCCP 217 PRUM Tra 2 TCCP 301 CHHIM

Chheak Chiek 2 TCCP 239 BUN Khen 2 TCCP 257 MOM Vanny 2 TCCP 265

CHHANG Youk 2 TCW 870 and HONG Sok 2 TCCP 282

DECLARES MOOT the requests as regards the following deceased individuals Professor

Ian HARRIS 2 TCE 86 SOK Soth 2 TCW 862 IEP Duch 2 TCW 815 and NEANG

Dam 2 TCW 802

On the Worksites trial topic

REJECTS the request to summons the following proposed witnesses and Civil Parties

SAOM Phan 2 TCW 876 SUM Sokhân 2 TCW 911 CHEA Marie 2 TCCP 294

CHHOEM Rin 2 TCCP 228 ROS Chay Laim 2 TCCP 278 TULOH Slai Man 2 TCCP

227 TY Pho 2 TCCP 229 ORM Mâk 2 TCCP 284 THUN Hâm 2 TCCP 279 and IM

Chaem 2 TCW 924

DECLARES MOOT the requests as regards the following deceased individuals KE Un 2

TCW 896 IENG Chham 2 TCW 912 CHHIT In 2 TCW 861 and CHEA Sim 2 TCW

878

On the Treatment of Targeted Groups trial topic

REJECTS the request to summons the following proposed witnesses Civil Parties and

experts CHHUON Ri 2 TCW 843 LENG Samet alias Tech 2 TCW 957 BOU Van 2

TCW 939 CHUOP Kep 2 TCW 905 PEOU Sinuon POV Sinuon 2 TCCP 295 UK

Soeum alias SAN Soeun 2 TCW 806 KHUN Samit 2 TCW 857 IENG On 2 TCW

935 PRUM Yan 2 TCW 837 NGUYEN Thi Tyet 2 TCCP 234 NGVIENG Yang Anh

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2 TCCP 240 UN Sovannary 2 TCCP 231 MAN Heang 2 TCW 895 NHEM Kol alias Say 2 TCW 884 PHLONG Hân 2 TCCP 285 SUM Chan Thol 2 TCCP 272 RES Tort

2 TCW 818 as reserve witness KAE Noh 2 TCW 839 CHEA Maly 2 TCW 947

KHUTH Voeurn 2 TCCP 260 LI Pat 2 TCCP 262 TOLORS Karsim 2 TCCP 226 and

BLENGSLI Bjorn 2 TCE 91

DECLARES MOOT the requests as regards the following deceased individuals KHUN

Mon 2 TCW 958 LANG Hel 2 TCW 927 1ER Pov 2 TCW 874 HOK Hoeun 2 TCW

955 and CHEA Sim 2 TCW 878

On the Security Centres and Internal Purges trial topic

REJECTS the request to summons the following proposed witnesses Civil Parties and

experts Witness MAO Phat 2 TCW 825 Witness UM Keo 2 TCW 892 Civil Party ROCHAM Blek 2 TCCP 302 Civil Party NAI Seak 2 TCCP 266 Civil Party SEV Liem

2 TCCP 221 Witness SAOM Met 2 TCW 902 Witness NHEP Hau 2 TCW 811

Witness CHEAM Sour 2 TCW 826 Witness CHUUN Phal 2 TCW 872 Witness KHIEU

Ches 2 TCW 907 Witness KOK Sros 2 TCW 941 Witness PESS Matt aka PES Math

alias LY Try 2 TCW 824 Witness YIN Nean 2 TCW 963 Witness CHEY Sopheara 2 TCW 814 Witness CHHEM Neang 2 TCW 899 Civil Party CHIN Met 2 TCCP 242 Civil Party PHOAK Khan 2 TCCP 291 Civil Party NAM Mon 2 TCCP 267 Civil Party

CHUM Neou 2 TCCP 246 Witness Walter HEYNOWSKI 2 TCW 946 Witness KA 0

Son 2 TCW 940 Civil Parties LOEM LIM Korn 2 TCCP 277 CHAN Savuth 2 TCW

959 HEL Oun 2 TCCP 249 PIN Phorn 2 TCCP 299 Witness THIOUNN Mnmm 2

TCW 890 MEAS Muth 2 TCW 903 expert David Porter CHANDLER 2 TCE 84 and

expert Laura J SUMMERS 2 TCE 100

DECLARES MOOT the requests as regards the following deceased individuals Witness KHOEM Peou 2 TCW 835 Witness SAN Lan 2 TCW 853 Civil Party SOK Ei 2

TCCP 222 Witness AUM Mol 2 TCW 863 Witness CHEA Sim 2 TCW 878 Witness

MAM Nai 2 TCW 864 Witness LY Hor 2 TCW 956 Witness CHEA Choeum 2 TCW

812 Witness CHHAOM Se 2 TCW 840 Witness TOAT Thoeun 2 TCW 829 and

Witness PEN Sovan 2 TCW 952

On the Regulation of Marriage trial topic

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REJECTS the request to summons the following proposed witnesses and Civil Parties YIM

Saroeum 2 TCCP 929 HORNG Orn 2 TCCP 254 OEM Pum 2 TCCP 289 CHECH

Sopha 2 TCCP 281 SOEU Ry 2 TCCP 287 HENG Kuylang 2 TCCP 276 DORK

Sokin 2 TCCP 248 MAO Kroeum 2 TCCP 264 HENG Mach 2 TCCP 280 SENG

Thâng 2 TCCP 292 TEU Ry 2 TCCP 225 and TRI Touch 2 TCW 1024

On the Nature of the Armed Conflict trial topic

REJECTS the request to summons KHUN Khim 2 TCW 810 and NAYAN Chanda 2

TCE 83

DECLARES MOOT the request to call deceased Witness CHEA Choeum aka CHEA

Chhoem 2 TCW 812

On the Role of the Accused trial topic

REJECTS the request to summons the following proposed witnesses and Civil Parties YEN

Kuch 2 TCW 871 LONH Dos 2 TCW 942 THET Sambath 2 TCW 885 SUON Ri 2

TCW 856 HEM Savann 2 TCCP 250 HOENG Neng 2 TCCP 253 NEOU Sarem 2

TCCP 268 and

NO LONGER SEEKS to hear SAR Sarin 2 TCCP 237 from the list of witnesses Civil

841 Parties and experts for the trial topic on the Role of the Accused

841 Decision Withdrawing 2 TCCP 237 from the List of Civil Parties heard in Court confidential E29 501 1 14 December 2016

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 145 July 2017 i ERN>01516109 002 19 09 2007 ECCC TC E459

On the Experts

REJECTS the request to summons the following proposed experts Ben KIERNAN 2 TCE 89 Ewa Maria TABEAU 2 TCE 93 Craig ETCHESON 2 TCE 85 Philip SHORT 2

TCE 92 and Roel A BURGLER 2 TCE 96

REJECTS the request to summons Witnesses HENG Samrin 2 TCW 831 POL Saroeun

2 TCW 962 OUK Bunchhoeun 2 TCW 951 on the basis that no consensus could be

reached

Phnom Penh 18 July 2017

President of the Trial Chamber

4 i{w ~~ p ~ Nil Nom

Decision on Witnesses Civil Parties and Experts Proposed to be Heard in Case 002 02 Confidential 18 146 July 2017

I